Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit

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No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S.

Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died.

So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak.

And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient.

In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:

Sec. 74.151. LIABILITY FOR EMERGENCY CARE

(a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01.

(e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.

So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove.

What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family?

You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns 

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