There's a lot of angst over the apparent missteps in handling the care of Thomas Eric Duncan, the Liberian man who was the first patient diagnosed with Ebola in the United States. There are still questions why he was initially sent home from the emergency room at Texas Health Presbyterian Hospital, even though his condition indicated a possible Ebola infection.
A hospital representative has apologized for mishandling Duncan's care, and Duncan's family is eying a lawsuit against the hospital. But a 2003 state law making it incredibly hard for patients to sue emergency room doctors would likely present a pretty substantial hurdle if Duncan's family pursued legal action against the hospital.
Just to recap: Duncan showed up at the hospital's emergency room on Sept. 25 displaying symptoms that indicated Ebola, and he had told a nurse he recently traveled from Liberia. However, that information never made it to an attending physician, and Duncan was sent home. He returned to the ER two days later and was admitted to the hospital this time. He died 10 days later.
There are at least two big questions here: Why did the hospital send Duncan home in the first place? And how big of an error was that?
Under Texas's tough medical malpractice standards for ER care — among the toughest in the nation — a doctor has to show "willful and wanton negligence," meaning that he or she knowingly put a patient at risk. That's a tough standard to meet, according to University of Texas Law School professor Charles Silver, an expert who's studied the state's malpractice law. Malpractice laws vary across the country, but states with standards not as strict as Texas's just require proof that substandard care was provided.
Then there's the second episode of care, when Duncan was admitted to the hospital. That doesn't fall under the state's stricter malpractice standards for ER care, but Silver said that could still be a tough case to make when an estimated 70 percent of patients infected in this Ebola outbreak have died.
"When you have a disease that kills a large fraction of the population it affects, it's very, very difficult to show that it's because of a hospital's mistake rather than the disease itself," Silver said.
As I wrote earlier in the week, Texas is one of three GOP-dominated states that enacted pretty strict medical malpractice reforms in the past decade. The goals of the laws were to protect emergency room doctors from lawsuits and reduce health spending — the theory is doctors wouldn't feel pressure to provide unnecessary care with the sole purpose of avoiding a possible lawsuit. Except new research published in the New England Journal of Medicine this week found that these state reforms didn't actually save money — which Silver's previous research and other studies have also found to be the case in Texas.
The Texas law, though, did have a major effect on litigation in the state. The number of malpractice claims reportedly fell by two-thirds between 2003 and 2011, and the average payout was cut 22 percent to about $199,000. And patients injured in the ER say they've had a tough time finding legal representation.
"I'm not aware of any lawyers who'd taken cases against ER doctors at this point," Silver said.