Hospital Tort Liability to Third Parties for Failure to Diagnose Ebola?

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If the revelation this week that a patient in the United States has been diagnosed with Ebola virus is not scary enough, the news that the hospital at which the diagnosis was made actually sent him home days earlier without considering that diagnosis may be scarier still. Apparently, a patient landed in Dallas on a flight from Liberia (Africa) on September 20. After a few days visiting family, the patient started to feel ill, and finally went to the emergency room of Texas Health Presbyterian Hospital on September 26 with symptoms that were consistent with, among numerous other things, Ebola. However, the hospital discharged him that same day. Two days later, on September 28, he was taken by ambulance back to the same hospital, where he was admitted and diagnosed presumptively with Ebola virus.

What is currently cause for general public concern about whether his disease may spread may also ultimately be a tort lawyer “think tank’s” dream discussion topic. Does a hospital have a duty to protect the public – not just its patients – from contracting a contagious and potentially fatal disease? The Ebola virus purportedly does not spread through the air, but only by physical contact with the infected person’s bodily fluids. Moreover, an infected person is apparently not actually contagious until he/she becomes symptomatic, which may take up to 21 days from his/her own initial infection. In this case, the patient in question arrived in the United States symptom-free, but then developed symptoms within days of his arrival, and by the time he first presented to the hospital, was likely susceptible of passing the virus to others. From news accounts to date, it appears that during his initial ER visit, however, he either was not asked if he had recently traveled abroad, or that information was not fully appreciated or communicated, and as a result, an opportunity was missed to at least consider the possibility of an Ebola infection in their differential diagnosis. From the standpoint of medical malpractice law, such a failure to diagnose might expose the hospital to liability to the patient. But what about to third persons?

If during his two days between hospital visits this patient somehow infected others (sneezing or coughing in a movie theater, vomiting on a bus, passing sweat or blood to the skin of a passerby in a grocery store), do those individuals have a cause of action against the hospital? They were not the hospital’s patients – in fact, it is conceivable that some person who becomes infected lives many states away — so what is the hospital’s duty to them? No doubt it is cause for some alarm that the CDC is now aggressively trying to locate anyone who had contact with this patient before his second hospital admission. While the country holds its collective breath that this incident will be as isolated as this patient now is himself in the hospital, we all know how devastating a disease this can be. Those who contract it may suffer horrific symptoms and the death rate is substantial. Does an individual who suffers severe Ebola virus symptoms through contact with the Dallas patient have a claim for damages? Does a family that potentially loses a loved one to this horrible disease have any recourse? And if the disease has been passed broadly and injuries are wide-spread, what are the limits of the hospital’s potential liability?

In most states, “foreseeability” of potential harm is a key factor in tort liability. Several years ago, however, in the context of dangerous psychiatric patients (via a case from California called Tarasoff), healthcare providers were handed the responsibility of protecting third persons from foreseeable harms that might be caused by a psychiatric patient when the clinician had knowledge that the patient had the potential to injure or kill specific individuals. Over the years, that obligation has been eroded, revised, updated and manipulated from state-to-state, and probably does not serve as relevant comparison to the Ebola issue here. However, given the potential for extreme and widespread injury, will healthcare providers once again be held accountable for any injury they might have prevented, even beyond the walls of the hospital? For the population that lives in fear of what Ebola may bring, do viable claims for “negligent infliction of emotional distress” have merit?

We can only hope that Ebola is contained, not only in the United States, but in Africa, where it devastates large areas. From the tort law perspective, we doubt that any wants to see a case develop in which the “zone of danger”, for all intents and purposes, is the entire country.

 

 

Business-Friendly Missouri Allows the Creation of “Series Limited Liabilty Companies”

    

Business-Friendly Missouri Allows the Creation of “Series Limited Liability Companies”On July 1, 2013, Missouri’s Governor Jay Nixon signed into law legislation allowing the creation of “series limited liability companies”. (SLLC).  Missouri is now one of very few states that allow business owners to create SLLCs.  In order to understand how an SLLC company generally operates, you should first understand the benefits of a standard limited liability company (LLC). 

     Generally, an LLC member’s personal assets are protected if the LLC is sued.  In other words, only those assets held by the LLC can be attached if a judgment is awarded against the LLC.  For example, if the assets owned by the LLC consist of rental property, then only those assets can be attached; not those of the individual LLC member. But in this example, the LLC’s assets can be attached, regardless of whether those assets consist of one parcel or twenty separate parcels of rental property.  However, if each separate parcel of rental property is owned by a separate LLC, then only the rental property of the individual LLC that has been sued can be attached.  Thus, not only are the LLC member’s personal assets protected, but so are the company assets in each of the other nineteen separate LLCs.  This technique of providing asset protection for each LLC, however, requires filing individual articles of organization for each one, accompanied by individual filing fees, and incurring the expenses attributable to the multiple and repetitive tasks associated with managing each LLC. 

     The SLLC, on the other hand, obviates the necessity of multiple filing fees and, to some extent, repetitive management tasks.  An SLLC consists of a parent LLC with two or more sub-LLCs, often call cells, under one umbrella.  The SLLC will have one name with each cell have the same name but distinguishing itself from the other cells.  For example, the cells under a parent-SLLC named Acme, LLC will be named Acme, LLC (Cell A), Acme, LLC (Cell B), and so forth.  Whereas a separate operating agreement is needed for each separate LLC, only one global operating agreement is needed for an SLLC provided, pursuant to Missouri’s new law, that each cell is identified therein.  Each cell has the power to conduct business as if it were a separate LLC, which includes conducting business with another cell under the same SLLC.

     Missouri’s new SLLC law emphasizes that while one or more cells may have separate business purposes or investment objectives from the other cells, those must be specified in the operating agreement.  The new law also sets out various other requirements that must be met and included in the operating agreement in order for a company to be part of an SLLC.  While the formation of a single LLC does not mandate the need for an operating agreement, the new law thus seemingly requires an operating agreement when forming an SLLC.  This means that the operating agreement for an SLLC must contain technical provisions not otherwise contained in a operating agreement designed for a single LLC.  Because of this, and the SLLC’s infancy in Missouri, legal advice should be sought when considering the formation of an SLLC. However, this new legislation provides reason for hope that Missouri is becoming more “business-friendly”.        

#LLC         #serieslimitedliabilitycompanies          #MissouriHB510

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