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Could Dallas hospital be liable for Ebola death?

Texas Health Presbyterian Hospital
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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.

Tort reform and other 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. "I can't see why somebody would take this case for just strictly a contingent fee.

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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.

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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.

"Even had they recognized it earlier, there was still nothing the hospital could do," he said. "It's not like we have a magic cure for Ebola."

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Health-care officials have identified several dozen people who had contact with Duncan while he was ill, including health-care workers and friends and family who had direct contact. If one of them is stricken with Ebola and goes to Texas Health Presbyterian, and the hospital again fails to act on information about their Ebola exposure, Silver said the bar to demonstrate negligence could conceivably shift.

"The more knowledge you have of the danger would establish more strongly that you don't care whether you are taking good care of your patients," he said. But he does not expect the Dallas Hospital to repeat any errors from the Duncan case. "My hunch is that they will not do this again."