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.