We have been talking about the tragic death of Thomas Eric Duncan, who died from Ebola in early October. The well-publicized details of his care included an emergency room misdiagnosis. Could the emergency room team be held liable for that mistake?
In any discussion of medical malpractice, the subject of tort reform comes up, and we addressed part of what that means in our last post. As we said, New York does not have the rigorous medical malpractice controls in place that other states have. It's important to remember that these cases are governed by state law.
The basic element of tort reform is a cap on noneconomic damages, the jury awards for pain and suffering. Advocates also want to limit contingency fees and the number of class action lawsuits. The thinking is that enormous jury awards for pain and suffering -- economic, or compensatory damages are not capped -- and the incentive to litigate even weak claims that comes with contingency fees are among the reasons that health care costs have risen to sharply.
Texas has long been held up as an example of a successful tort reform jurisdiction. It was among the first states to adopt a cap and has extended special protection to emergency room care teams. It is that law that could stymie the efforts of Thomas Eric Duncan's family to sue.
In Texas, a plaintiff in the family's position would have to prove two things. First, that the care provided in the emergency room deviated from the standard of care -- the same standard we talked about in our last post. Second, he must prove that the defendant nurse or doctor "willfully and wantonly" violated that standard of care.
That's a pretty high bar. The plaintiff has to prove that the defendant acted in reckless disregard, deliberately failed to abide by the standard of care, consciously set his legal duty to the patient aside. In other words, it cannot be an honest mistake.
Patient advocates have speculated that Duncan's family -- who, again, has not filed and may never file a lawsuit -- could argue that Duncan was dismissed because of his race. This is a topic for another post at another time.
CBS Local (Houston), "Ebola Cases Could Spur Lawsuits," Oct. 24, 2014
Vernon's Texas Statutes and Codes Annotated, Civil Practice & Remedies Code § 74.152, via Westlaw