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


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.



“The Sky’s the Limit” – But How Much for Drones?

Drone flies from hotel near Space Needle

     In our last article, we reported on the rise in interest and use of personal drones or “quadcopters”. On almost a daily basis now, one can find a news story about drone incidents or videos of the stunning pictures that users can take from the sky, as they are increasingly being used to capture aerial footage. Such use poses privacy and trespass concerns, and there obviously are also safety concerns. However, drone usage seems to be outpacing the development of laws or regulations that might govern them

     It only seems logical that the Federal Aviation Administration (“FAA”) would be the first place to look for laws regulating the operation of drones. Surprisingly, however, attempting to do so is akin to playing a game of connect-the-dots without the benefit of the numbers. First, when the FAA’s regulations were initially promulgated over a half-century ago, nothing in them specifically regulated the operation of drones. Second, it was only over time that the FAA, in a piecemeal-fashion, started to address the operation of drones by issuing a series of “advisory circulars” and policy statements.

      Because of the ambiguity, vagueness, and over-breadth of these advisory circulars and policy statements, the regulation of drones currently remains in a state of flux. The FAA essentially stuck its regulatory nose in drone usage in a situation that ended in a case styled FAA v. Pirker. Raphael Pirker was contracted by the University of Virginia to shoot a publicity video of the campus, for which he used his camera-equipped drone. Upon learning of this, the FAA fined Pirker $10,000 for violating its regulations restricting the use of “commercial” drones. Last March, however, a federal administrative law judge sided with Pirker, holding, in essence, that Pirker’s drone constituted a model aircraft, and, because the FAA did not have regulations governing model aircraft, the FAA’s rules restricting the use of commercial drones were non-binding and non-regulatory. Rather, Pirker was subject only to the FAA’s “requested voluntary compliance” rules (FAA Advisory Circular 91-57) for model aircraft hobbyists: flying below 400 feet; selection of an operating site of sufficient distance from populated areas; and not flying the model aircraft within three miles of an airport without first notifying the control tower or flight service station. Since the FAA is appealing, the decision has, in effect, been stayed.

      The FAA has been tasked by Congress to design new regulations by September 2015 governing the use and operation of drones. In furtherance thereof, the FAA, in 2013, released its roadmap on the integration of unmanned aircraft into national airspace. Since last year, 13 states have enacted their own laws regulating the operation and use of drones. These state laws are not uniform and, although many are applicable to state agencies, some apply to private operators as well. In Tennessee, it is illegal to use a drone to photograph hunters and fishermen without their consent. It is illegal in Wisconsin to equip a drone with a weapon. Texas and Montana prohibit a private operator from using a drone to conduct surveillance of or photograph an individual on private property without first obtaining the individual’s consent. A drone operator in Oregon is prohibited from flying a drone less than 400 feet over another person’s private property without first obtaining consent of the owner or resident.

      So far this year, 36 states attempted to follow the 13 other states by introducing or attempting to pass legislation regulating the operation and use of drones. Many of these states will revisit these issues during their next legislative sessions. What this means is that, in order to fill in the void created by the FAA, more and more states are passing their own laws regulating the operation and use of drones, whether directed to state agencies or private individuals or both.

      Although a drone operator may be familiar with his state’s laws (or the absence thereof), he should become familiar with drone laws of other states when operating drones in those states. Coining an old (but still viable) adage, “Ignorance is no excuse of the law.” Recently a tourist in Seattle, Washington operated a drone from his fifth floor hotel room, photographing visitors on the observation deck (520 feet above ground) of the Space Needle. Fortunately for the operator, the State of Washington had no laws prohibiting him from operating his drone in this manner.

     As technology changes, so does society; and as society changes, so do laws. In other words, the drones are here, and not far behind are increasing (and differing) laws regulating their operation and use.


#drones  #remotely piloted vehicles  #quadcopter  #personaldrones  #FAA  #state laws

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Personal Drones Invade the Legal World

Drones Invade the Legal World

Personal Drones Invade the Legal World

     They are referred to as unmanned aircraft (“UA”), unmanned aerial vehicles (“UAV”), unmanned aerial systems (“UAS”), remotely piloted aircraft (“RPA”), remotely piloted vehicles (“RPV”), and remotely piloted air systems (“RPAS”). Some of these terms are uniquely distinguishable from others, but they have all been found to fall under one generic category – drones. After all, “a rose is a rose . . .”—and you know the rest. To further sub-categorize, drones fall into two classes: fixed-wing drones that fly similar to an airplane; and vertical take-off and landing drones (“VTOL”), which are similar to helicopters. Although some VTOLs have more than four propellers, a typical VTOL has four propellers and is often referred to as either a “quadcopter” or “quad.” The quadcopter is the most popular drone among private users of drones.

     With all of the publicity and discussion in the media about military drones, many people do not realize that individuals can purchase and own drones. Small quadcopters, about the size of an adult hand, can cost approximately $30, and have a range of up to 50 feet. Camera-equipped quadcopters, approximately 18 inches in diameter, can be purchased for as low as $150 while more sophisticated models can be of larger diameter and cost up to $3,000. Depending on the type of model and price, quadcopters can have a range of up to two miles and potentially reach altitudes of several hundred feet. Currently, no training or licensure is required to operate personal quadcopters. As a result of these factors, and the ease of take-offs and landings, quadcopters are gaining popularity in the recreational sector and certain businesses. One of the larger manufacturers of small quadcopters, DJI, is believed to sell approximately 10,000 units weekly. However, just as with the introduction of the automobile a little over a century ago, legal issues now loom on the horizon for drones and those who use them.

     In all likelihood, the most prevalent types of legal issues involve personal injuries and property damage. For example, in a recent incident, while a photographer was attempting to secure aerial photographs of a bride and groom using a camera-equipped quadcopter, he lost control of it and it hit the groom in the head, causing lacerations to his eye and cheek. [Fortunately for the photographer, the groom was very forgiving and understanding.] In another incident in Virginia, a quadcopter crashed into a crowd of spectators watching an event and injured four people. In Manhattan, a quadcopter flew into the side of a high-rise building and plummeted to the sidewalk 300 feet below. Likewise, an athlete in an Australian triathlon was seriously injured when a quadcopter collided with her. While some injuries are caused by operators losing control of the device, other injuries result from the quadcopter simply falling from the sky after exceeding its range limit or from battery failure.

     Aside from personal injury and property damage, using drones could result in other legal actions such as invasion of privacy and trespassing. Recently, in Portland, Oregon, a tenant spotted a quadcopter hovering outside a window of her 26th-floor apartment. As it turned out, the quadcopter was being operated by a developer who was photographing a site for a 20-story office building. One can imagine the claims that might be made if someone were to secure potentially embarrassing photographs of an individual who believes they are safely behind a high privacy fence.

     At this time, private use of drones have been banned in all of America’s 401 national parks. This past April, a quadcopter disturbed a herd of bighorn sheep at Zion National Park, resulting in the adults becoming separated from the younger animals. But as with other developing technologies and hi-tech toys, drones are here and are gaining in popularity. Recreational owners of quadcopters should be sure that they are covered by liability insurance. Although specific language about “drones” is almost certainly lacking (at this point) in most homeowner insurance policies, some policies will generally cover personal injury and property damage resulting from quadcopters. Owners of quadcopters should either read their policies or contact their insurance companies to be certain. While homeowner policies might cover private personal use, coverage may not apply if quadcopters are used for business purposes (e.g., securing photos for sale or business use, etc.). But there can be a very fine line regarding what constitutes a business versus personal use, such as farmers using drones for monitoring their crops. At this point, under general policy coverages, claims and lawsuits for invasion of privacy and trespassing might not be covered. Some insurance companies provide coverage specifically for the operation of quadcopters. However, the cost of premiums may depend on the owner’s training and expertise in the operation of quadcopters, as well as the use to which it is put. The bottom line: having fun with this hobby can come at a cost, a cost for which you should be prepared.

[This is the first in a planned series of articles on the subject of legal issues related to personal drones and their use.]

#drones  #remotely piloted vehicles  #quadcopter  #personaldrones  #personalinjury  #propertydamage  #invasionofprivacy  #trespassing

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.

The choice of a lawyer is an important decision and should not be based solely upon advertisements