11/25/2014

Coming to America

Containing the emerging Ebola crisis and claims.

By Nichol Bunn

It starts with a low-grade fever. About a week later, you start to crash. Your blood pressure drops, and you develop renal or liver failure as the virus begins to attack every organ in your body, necessitating dialysis or a ventilator. Over the next week, you lose up to 10 quarts of fluid a day from vomiting and diarrhea. In the meantime, your blood vessels start leaking, which causes you to start bleeding through various orifices. If you are part of the lucky 30 percent, you will survive Ebola.

The most current outbreak of Ebola started in December 2013 with a two-year-old boy, but was not officially recognized until March 2014. During that time, the virus spread. Today, the World Health Organization (WHO) reports that eight countries are affected, 9,000 people have been infected, and approximately 4,500 have died. However, the WHO believes these numbers are incorrect and estimates that the true numbers are much higher. The WHO also increased the case fatality rate (CFR) for the current strain of Ebola to 70 percent. To put this in perspective, the Spanish Flu killed 50 million people worldwide in 1918 with a CFR of only two-to-five percent. According to the WHO, the current Ebola outbreak is “the most severe, acute health emergency seen in modern times” and shows no signs of stopping. In fact, 20,000 new cases are expected by December 2014.

On Sept. 20, 2014, the Ebola virus boarded a plane along with a Liberian named Thomas Eric Duncan and landed in Dallas, Texas. Two weeks later, Duncan died—but not before transmitting the disease to two of his nurses. For the first time in history, Americans had been exposed to Ebola here at home, and the virus exposed how unprepared we actually are.

Potential Claims

From the moment Duncan walked into the emergency room at Texas Health Presbyterian Hospital, mistakes happened. Despite informing a nurse that he had recently been in West Africa, this information was not fully communicated to his treating physician, causing Duncan to be sent home where his condition worsened. He returned to the hospital two days later, at which time he was properly diagnosed and placed in isolation. During that time, two of his nurses became infected, despite wearing personal protective equipment (PPE). Duncan died on Oct. 8, 2104.

Several prominent plaintiffs’ lawyers have looked at the case for possible legal action, but even they acknowledge a lawsuit would be difficult given Texas’ tort reform law, which was codified as Chapter 74 of the Texas Civil Practice and Remedies Code (Chapter 74). They recognize that a lawsuit against the hospital or physician would face several challenges. For example, in order to establish liability against emergency room providers, Duncan’s family would have to show that the failure to communicate the information and/or the delay in diagnosing Ebola resulted from “willful and wanton negligence.” In addition, they would have to prove that the delay in diagnosis caused Duncan’s death. Given the high CFR of Ebola, it would be difficult to find a credible expert to testify as to causation. Even if that occurred, any award for noneconomic and punitive damages would be capped. Furthermore, any award for punitive damages would be subject to a higher standard of proof and require a unanimous jury finding.

However, Texas tort reform only applies to health care providers. Those entities that do not meet the legal definition may have exposure. For example, the hospital initially cited a flaw in its electronic medical record system for the delay in diagnosis. The company that designed the system would not be considered a health care provider and, thus, not subject to Chapter 74—including the cap on damages—unless they met the specific requirements of Chapter 74.

According to the Texas Department of Insurance, the parent company for Texas Health Presbyterian is a subscriber. That means the two infected nurses, both of whom have since recovered, likely are limited to using workers’ compensation. However, if the claims are not barred by workers’ compensation, there also are the potential claims from the infected nurses. Recent reports indicate that health care workers represent about 10 percent of all current Ebola cases. This is understandable, given their proximity to the patients and the nature of the disease. At the peak of infection, an Ebola patient can have 10 billion viral particles in just one-fifth of a teaspoon of blood. Compare that to a comparable sample containing hepatitis C, which can have as little as five million particles. This is why medical personnel are required to use PPE when working with Ebola patients.

Although Duncan’s nurses were using PPE, the CDC initially claimed that the nurses did not follow procedure at some point during their use or removal of the equipment. Since then, the CDC has since softened its rebuke, but the reality is that the misuse of PPE is the likeliest source of the nurses’ infections.

The use of PPE can be extremely difficult and dangerous. Several of the Texas Health Presbyterian nurses claim that the hospital did not have protocols in place for dealing with the Ebola virus and did not know what type of PPE should be worn. They also maintain that the nurses were unfamiliar and untrained in the use of PPE. In response, the hospital insists that the PPE used was consistent with federal guidelines and the staff went above and beyond regulator recommendations. Both positions probably are true. Medical teams may have had the right equipment and protocols, but were not familiar with how to use them precisely. According to Dr. Aileen Marty, a WHO physician, no amount of protection is going to help workers who do not put on or take off layers carefully.

Even if Duncan’s nurses had viable claims against the hospital for failure to train them in the use of PPE, they arguably are subject to the constraints of Chapter 74. Although the nurses were not patients and were not receiving care at the time they were infected, Texas courts currently are split on whether Chapter 74 applies to nonpatient health care workers who are injured while providing medical care.

Minimizing Risks

Texas Health Presbyterian’s Chief Clinical Officer Dr. Daniel Varga says, “We all in the health care community underestimated the challenge of diagnosis.” However, it is unlikely that many hospitals would have been prepared. There are only four biocontainment units in the U.S. that are equipped to isolate patients with highly infectious diseases like Ebola. One of the hospitals prepared to treat Ebola safely is Emory University Hospital in Atlanta, Ga. Despite their preparations, they encountered unforeseen challenges when they admitted an Ebola patient from overseas. Reportedly, the county threatened to disconnect them from the sewer lines if Ebola waste went down the drain; the medical waste company refused to touch anything from an Ebola patient unless it was first sterilized; couriers would not drive blood samples a few blocks to the CDC for testing; and exhausted staff could not even get pizza delivered.

Nevertheless, the Director of Centers for Disease Control and Prevention (CDC) Dr. Tom Frieden has stated that any hospital could safely take care of an Ebola patient as long as they had a private room with a private bathroom and rigorous, meticulous training and materials to make sure it is done safely. However, several health care providers disagree. Regardless of whether a hospital is in the position to accept Ebola patients, it should take steps to minimize the risks associated with caring for them long term or at least until they can be transferred. In fact, other health care providers such as nursing homes and physician groups should consider the risks involved with Ebola and plan accordingly.

Although health care providers should have procedures in place to address known issues and anticipate potential ones, it is important to realize that no battle plan survives first contact with the enemy. Testing policies and procedures with drills and mock scenarios will help employees learn and will show where the plans could be strengthened.

In the meantime, the government now has created a rapid response team that will be sent to any hospital where Ebola has been confirmed. According to Dr. Frieden, this new Ebola Response Team will have some of the world’s leading experts in how to care for patients and protect nursing staff. The team will be charged with everything from examining how the isolation room is laid out to what PPE should be used as well as helping to coordinate waste management and decontamination.

Spread of Ebola Claims

Like the virus itself, the risks related to Ebola appear to be contagious, and the losses are poised to spread beyond the health care-related claims. In response, the insurance industry already is making preparations. U.S. and British insurance companies have begun to write Ebola exclusions into standard policies covering hospitals and other businesses. Others are beginning to offer new products that provide coverage for business losses resulting from Ebola, and those business losses can add up.

During Duncan’s stay, Texas Health Presbyterian was described as a ghost town. Since then, ER visits are down 53 percent, surgeries fell 25 percent, and revenue dropped $8.1 million. Physicians’ offices orbiting the hospital also reported a 15 percent drop in patient volume. It has been reported that Miller Insurance Services LLP and William Gallagher Associates recently teamed up with Lloyd’s of London underwriter Ark Syndicate to launch the first product to insure hospitals against losses from any shutdown made necessary by an Ebola quarantine.

But hospitals are not alone. Other businesses could be affected by Ebola. For example, in another recently confirmed case of Ebola in New York City, the bowling alley visited by the patient the day before his hospitalization was shut down until further notice.

In addition to business interruption, other types of claims are being addressed. Property and casualty insurers are considering Ebola exclusions or increased rates for Ebola inclusions. Ebola exclusions also are being considered for companies that have employees who travel abroad. There are a variety of other industries and claims that could be affected by Ebola, including employment, environmental, and HIPAA/data breach. In fact, the Nebraska Medical Center recently fired two staffers who inappropriately gained access to the medical records of an aid worker who acquired Ebola overseas and was being treated at the hospital. Questions about who pays for claims involving Ebola most certainly will trigger coverage issues.

Many virologists believe Ebola is the one disease that we should be really worried about, but it has some competition. Even if the current strain of Ebola ultimately is contained, the reality is that our world’s globalization primes us for a pandemic, whether it is the next strain of Ebola or another infectious disease like Marburg, Enterovirus68, SARS, or H5N1. In the meantime, we must prepare and manage the risks with awareness, education, training, and contingency plans.  



Nichol Bunn is a partner in the Dallas, Texas office of Lewis Brisbois Bisgaard & Smith LLP, where she handles professional liability claims with an emphasis on health care providers. She has been a CLM Member since 2010 and can be reached at (214) 722-7105, nbunn@lbbslaw.com, www.lbbslaw.com.

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