The tragedy of Thomas Eric Duncan's death has sparked debates about emergency room mistakes and tort reform all over the country. Tort reform is the term used to describe legislative and regulatory initiatives designed to curb the costs of medical malpractice and other personal injury litigation.
The main focus of tort reform advocates is a statutory cap on noneconomic damage awards -- that is, court and jury awards designed to compensate plaintiffs for "pain and suffering." Economic (compensatory) damages are not limited.
While New York is generally considered a pro-plaintiff jurisdiction for medical malpractice and personal injury claims, Texas, where Duncan died on Oct. 8, is heavily invested in tort reform. Not only does the state limit noneconomic damages, but it also severely limits the liability of emergency rooms.
As you may recall, Duncan was the Liberian national who was sent home from a Dallas emergency room with a misdiagnosis of sinusitis. When he returned three days later, even sicker than he had been, the care team correctly diagnosed Ebola. The hospital has apologized to Duncan's family, but questions still remain about that first visit. If the care team had diagnosed Ebola then, would Duncan have survived or, at the very least, had a better chance of survival?
That is a question for a jury, should his family decide to sue. The law in Texas, however, sets a high hurdle for proving negligence in an emergency room setting.
To prevail in a negligence lawsuit against, say, a neighbor, the plaintiff must prove that the neighbor failed to do what a reasonable person would have done under the same or similar circumstances. The neighbor must have had a duty of care to the plaintiff and then breached that duty, that breach must have caused the plaintiff's injury, and the plaintiff must have suffered damages as a result.
In a medical malpractice claim, the language changes a bit. A doctor has a duty to care for his or her patient, but the doctor has a slightly different duty, as well. The doctor must adhere to the generally accepted standard of care. Breaching that standard of care is what makes it malpractice.
Not, however, for emergency rooms. We'll explain in our next post.
Source: CBS Local (Houston), "Ebola Cases Could Spur Lawsuits," Oct. 24, 2014