EXECUTIVE SUMMARY
A nurse who contracted Ebola after treating a patient with the disease is suing her hospital. She claims the hospital failed to provide adequate training and protective gear, among several other charges.
• The nurse says she still suffers physically and mentally from the experience.
• She alleges that the hospital used her for public relations efforts against her will.
• Staff members allegedly resorted to Googling information on how to protect themselves.
In scathing allegations that paint a picture quite different than what the hospital has portrayed publicly, the nurse who was the first person to contract Ebola in the United States is suing her employer for thrusting her into danger without training or proper equipment. She also claims that the hospital lied about her volunteering to care for the patient and tried to use her to create positive press during the Ebola scare.
The hospital, of course, is at a disadvantage in defending itself publicly from the claims. Texas Health Presbyterian Hospital Dallas Spokesman Wendell Watson says that hospital officials still support 26-year -old Nina Pham but cannot comment on claims in the lawsuit.
“Nina Pham served very bravely during a most difficult time as we all struggled to deal with the first case of Ebola to arrive in a U.S. hospital’s emergency room. Texas Health Resources has a strong culture of caring and compassion, and we view all our employees as part of our family,” Watson says. “That’s why we have continued to support Nina both during and after her illness, and it’s why she is still a member of our team. As distressing as the lawsuit is to us, we remain optimistic that we can resolve this matter with Nina.”
The lawsuit is indeed distressing. It claims Pham still has nightmares, body aches, and insomnia as a result of contracting the disease from Thomas Eric Duncan, the first person in the United States diagnosed with Ebola. She claims the hospital’s lack of training and proper equipment and violations of her privacy made her “a symbol of corporate neglect — a casualty of a hospital system’s failure to prepare for a known and impending medical crisis.”
Seventy-six healthcare workers who helped treat Liberian Ebola patient Thomas Eric Duncan at Texas Health Presbyterian Hospital Dallas were monitored for potential Ebola exposure after his first visit on Sept. 24, 2014. Pham and another nurse contracted the disease, but both of them recovered. Duncan died. Healthcare workers involved in Duncan’s treatment complained at the time that inadequate education, training, and equipment put them at risk of infection. (For more information on Ebola and the Duncan case, see “Ebola prompts changes, creates new risk management challenges,” Healthcare Risk Management, December 2014.)
PPE, training criticized
The Centers for Disease Control and Prevention (CDC) confirmed claims that the Dallas nurses and physicians had to learn on the fly how to avoid infection. They initially used CDC protocols that left the caregiver’s neck exposed to the patient’s copious amounts of highly infectious vomit and diarrhea. The nurses treating Duncan worked for days without proper protective gear and faced constantly changing protocols, according to a statement released by National Nurses United, the largest United States nurses’ union.
The main allegations in the lawsuit concern what Pham says was a failure to develop policies, train staff for treating Ebola patients, and provide proper protective gear. Other claims delve deeper into what the nurse says was a purposeful effort by the hospital to mislead the public and use her to bolster the hospital’s image in a time of crisis. (For more on the allegations in the lawsuit, see story in this issue. For information on how the hospital allegedly misled Pham for public relations purposes, see story in this issue.)
“Nina brings this case to hold Texas Health Resources accountable for what happened to her and to send a message to corporations like it that the safety of all patients and health care providers comes first,” the lawsuit says. “So when the next viral outbreak occurs — and it will occur — these hospitals will be prepared and those health care providers will be protected.”
Pham is asking for unspecified damages for physical pain and mental anguish, medical expenses, and loss of future earnings. The hospital confirmed recently that it had settled with Duncan’s family regarding his delayed diagnosis. The family attorney said the settlement was for a “substantial amount.”
‘A PR nightmare’
Much of the legal liability in Pham’s case might be addressed by Texas workers’ compensation laws, but those laws still might leave unresolved issues related to her treatment as a patient and disclosure of her medical records, says Robert Fuller, JD, who headed a 199-bed acute care hospital in Los Angeles from 2001 to 2013, when he joined the law firm of Nelson Hardiman in Los Angeles.
Fuller notes that if the substantial allegations in the lawsuit prove to be true, they would suggest that Texas Presbyterian Dallas was not just the unlucky hospital that received the first Ebola patient when no other hospital was adequately prepared either. Other hospitals apparently were prepared, he says.
“It is a PR nightmare,” Fuller says. “The biggest issue facing that hospital system is that it was the only hospital where a secondary infection occurred. Emory, NIH [National Institutes of Health], Nebraska, Bellevue, all successfully cared for their Ebola patients without incurring infections to staff members. That shows that U.S. hospitals could and did handle Ebola successfully.”
The allegations in the lawsuit raise multiple questions about the hospital’s preparations for admitting an infectious disease patient, as well as the hospital’s organizational structure, he says. Fuller wonders if hospital leaders misjudged the facility’s ability to cope with the unusual case.
“Most importantly, why did the administrator not transfer the patient out to another facility?” Fuller asks. “In other words, did the administrator understand their capabilities and have a realistic assessment of what they could and could not do? Virtually every hospital has its limitations. The administrators have to know them and be prepared to insist on moving patients whose care cannot be accommodated well.”
A tough case to fight?
The workers’ compensation laws might work to the hospital’s benefit, notes Peter Ticktin, JD, senior counsel at the Ticktin Law Group in Deerfield Beach, FL. If an employee suffers an injury through simple negligence, the employee’s claim would be limited to workers’ compensation, he notes. Gross negligence must be proven to go beyond the compensation of workers’ comp, he explains.
“It is doubtful that this higher level of negligence could be found, if the level of protection was up to the level of almost all the other hospitals,” Ticktin says.
Despite the undeniable PR hit, other legal experts also say the situation it not unwinnable for the hospital. The case should be dismissed, says Bridget M. Cohee, JD, in the Martinsburg, WV, of law firm Steptoe & Johnson. A hospital does not have a duty to anticipate what the standard of care will be when confronted with a situation in which the standard has not yet been set, she says.
“The lesson is that no hospital is immune from a lawsuit, even when the merits of the claim are questionable,” she says.
Even so, the hospital might be well-advised to make the case go away as quickly as possible, says R. Scott Oswald, JD, managing principal of The Employment Law Group in Washington, DC. It is possible for the hospital to put up a defense and successfully argue that any oversights did not reach the level of gross negligence, he notes. But what would it gain, really?
“Nina Pham is a national hero, and she makes a tremendously sympathetic plaintiff. I think that anyone opposing her in a lawsuit is risking far more than money. THR’s whole image as a caring company is at stake,” Oswald says.
A long legal battle will remind everyone of the Dallas hospital’s terrible publicity from last fall, Oswald says, and Texas Health Resources might look like it’s bullying a role model who has been embraced, literally, by the United States president.
“In that sense, I think THR doesn’t have many good options,” he says. “It would be well-advised to come to terms quickly with Ms. Pham.”
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Bridget M. Cohee, JD, Steptoe & Johnson, Martinsburg, WV. Telephone: (304) 262-3538. Email: [email protected].
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Robert Fuller, JD, Nelson Hardiman, Los Angeles. Telephone: (310) 203-2803. Email: [email protected]. Web. www.nelsonhardiman.com.
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R. Scott Oswald, JD, Managing Principal, The Employment Law Group, Washington, DC. Telephone: (202) 261-2806. Email: [email protected].
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Peter Ticktin, JD, Senior Counsel at the Ticktin Law Group in Deerfield Beach, FL. Telephone: (954) 570-6757. Email: [email protected].
