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Could Hospital Face Ebola Death Lawsuit? Success Unlikely, Experts Say

Texas is one of the toughest states in which to bring and win a medical malpractice lawsuit, experts say.

Thomas Eric Duncan, the Ebola patient in Dallas who died Wednesday, may have been sent home while ill with the disease, and the doctors and nurses treating him may have failed to act on his report of coming from West Africa. But will those health-care providers or their hospital be legally liable? Not likely, Texas legal experts say. Legal changes in Texas since 2003 have made it one of the most difficult states in which to bring a medical malpractice suit, said Charles Silver, a law professor at the University of Texas at Austin. "I doubt that you could find a plaintiff's attorney to even take this case unless it was solely for the publicity value," Silver said.

Texas law sets a high bar for findings of negligence, Silver said. It states that a person administering emergency care in good faith "is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent." The result, Silver said, is that it has become almost impossible to prove negligence by emergency room physicians. The law also limits the financial scale of these suits. There is no cap on awards for economic damages such as lost wages or loss of future income. But if a patient wins an award for pain and suffering against a physician, it is capped at $250,000. A patient suing a hospital or multiple hospitals can only be awarded damages of up to $250,000 per hospital, up to an overall maximum of $500,000.

Seth Chandler, a professor and director of the Health Law and Policy Institute at the University of Houston Law Center, said anyone suing on behalf of Duncan may also have a hard time proving causation. Because Ebola is so deadly, he said, a few days' delay in Duncan's diagnosis may not have made a difference in how he fared. "It's not like we have a magic cure for Ebola," he said.