Tonacchio Law LC

I was recently asked about whether the nurse that caught Ebola in Texas would have any case for a lawsuit against the hospital, CDC or anyone else.  Since I don’t know all of the facts or all of the laws regarding any possible legal action that can be taken, it is difficult to perform a full analysis.  However, I can at least go through a few possible issues that at least one lawyer out there would surely like to explore.

1.  Does Thomas Eric Duncan’s family have  lawsuit because the hospital sent him home when he came to the hospital and he later died

At this point, just about everyone knows that Thomas Eric Duncan went to the emergency room last month with a fever. Workers sent him home even after he mentioned he recently traveled to Liberia.   He returned days later and the hospital staff finally isolated him at that point.   Dr. Daniel Varga, the chief clinical officer for Texas Health Services has indicated “Despite our best intentions and a highly skilled medical team, we made mistakes”.  Thus, the hospital has admitted that they failed.  The issue here is whether or not this failure to isolate him constitutes negligence/malpractice and whether that led to his death.   So far, he is the only person to have died and he was the only person to have been turned away.  However, the Plaintiff would need to find an expert to indicate that but for them turning him away, he would have recovered.  That could be tough but there are Ebola experts out there.

Story is here.

Legal experts in Texas believe that his family would have a very difficult time winning a law suit because of the strict tort laws there.  However, that doesn’t mean that they won’t try and see if they can settle out of court.  Story is here.

2.  Does Nina Pham have a lawsuit against the hospital or anyone else?

Nina Pham is the first nurse to contract Ebola and first patient to contract Ebola within the U.S.  At first, the hospital indicated that she contracted Ebola due to a breach in protocol.  However, Texas Health Services Commissioner Dr. David Lakey stated, “There’s no specific error that has been identified, I think. We are looking very closely at the protocols and how we can maximize the ability to contain the virus. There’s been no identified item at this time.”  In other words, they are saying that it was a breach but they can’t figure out what the breach was.  Emory Hospital has not had any nurses or other employees contract Ebola so clearly, there is some sort of problem at this Texas Hospital.

So the big issue will be who screwed up.  Its possible that Nurse Pham herself made some mistake but that scenario appears doubtful at this point.  Once it is discovery exactly who screwed up and how, it will be easier to determine liability.  The other interesting thing to note here is that her life will be changed forever as a result of the news coverage.  Thanks to the Internet, her name will be tied to Ebola forever.   If she has a claim, she could add to it that it has damaged her personal life in addition to her health.

Story is here.

3.  Does Amber Vinson have a lawsuit against the hospital or anyone else

Amber Vinson is in the same situation as Nina Pham.  She was a nurse at the same hospital treated Duncan.  There is also no idea how she contracted Ebola.  However, she also was told that it was OK to fly.  We now know that this was improper advice.  Dr. Thomas Frieden, director of the U.S. Centers for Disease Control in Atlanta, said Vinson should not have flown, but a federal official later said she had contacted the CDC and was not prevented from boarding.  Thus, the CDC screwed up here.  However, Vinson may not have suffered any real consequences assuming she recovers.  Thus, her damages, if any, would be in line with Pham’s.

Story is here.

4.  Does anyone have a case against CDC for allowing Vinson to fly?

I am by no means an expert on suing agencies such as the CDC, but there are a number of legal issues here.  CDC clearly screwed up.  The people on the plane with Vinson, the people at the airport and Frontier Airlines have all been damaged in one way or another; some more than others.  If the people on the plane (hopefully) do not contract Ebola, they will have less damages so a class action would be the way to go instead of a bunch of individual lawsuits, again assuming a case can be made against the CDC.  Normally, I think it would be tough to bring a cases against an agency such as CDC for issuing general guidance, but when they give wrong information to a specific person, that’s a different story.

Story is here.

5.  Does the hospital have a case against the CDC for not providing proper protocols?

Dallas’ chief political officer, County Judge Clay Jenkins, has been a vocal critic against the CDC.  He stated that the protocols weren’t given to the hospital to give them to the nurses.  In addition, another nurse who helped treat Pham came forward to say the Dallas hospital was unprepared for the emergency and lacked proper protective gear.   Briana Aguirre told NBC’s “Today” show that nurses were not briefed or prepared for Ebola and that no special precautions were taken when Duncan was admitted to the hospital.  This raises a number of question as to what the CDC should have done before Ebola came to the U.S. and what the hospital did or should have done before and after Duncan came to the hospital.

Story is here.

6.  Is Ebola is airborne and if so, does anyone have a case against the CDC or anyone else?

No one yet knows how Pham and Vinson contracted Ebola.  That has led to speculation as to whether or not Ebola is now airborne.  The  Centers for Disease Control and World Health Organization officials continue to insist Ebola cannot be transmitted by air from one person to another.  However, an Army manual clearly warns the virus could be an airborne threat in certain circumstances.  The handbook published by the U.S. Army Medical Research Institute of Infectious Diseases, USAMRID, titled “USAMRID’s Medical Management of Biological Casualties Handbook,” indicates that this is possible.  Furthermore, the latest edition was published in 2011, so its not like this is something that just came out.

Read more here.

Furthermore, Dr. David Sanders, professor of biological science at Purdue University, has cautioned that Ebola has the possibility of mutating to become airborne cannot be ruled out.  He stated that “our own research that we published with our collaborators, demonstrates that Ebola has the inherent capacity to enter lung tissue, human lung tissue, just as influenza does”.  Dr. Sanders is not alone.  Last month, Canadian researchers said their research found the strain of Ebola afflicting West Africa can be transmitted between humans by breathing.

Read more here.

So you have two parts of the government, the US Army and the CDC saying different things about whether or not Ebola can go airborne.  Furthermore, you have several researchers contradicting the CDC.   Hopefully the CDC is right but if it turns out that they were wrong and the information to the contrary existed for years before this outbreak, a number of legal issues will be raised about how CDC botched this issue.  Combine this with all of the other mistakes they have already admitted to making and that spells a really bad case for the CDC.

Bonus:

One lawsuit has already been filed due to Ebola  Larry Klayman is already suing the government over the Ebola outbreak.  However, I wouldn’t expect this one to go anywhere.  Read more about it here.