1. Ebola and malpractice tort reform:
As we all now know, the death of Dallas Ebola patient Thomas Eric Duncan was preceded by what might have been a fatal mistake made by emergency-room doctors or nurses at the Texas Health Presbyterian Hospital. Although he showed up at the hospital complaining of Ebola-like symptoms and reportedly told a nurse that he had just arrived from Liberia, he was sent home with antibiotics.
That mistake has already sparked widespread speculation about a malpractice suit that Duncan’s family could bring against the hospital and its staff.
However, in addition to the conventional legal questions about whether Duncan’s family could prove that his release — and the delay in his treatment — caused his death, the family has another problem: the law governing malpractice cases in Texas.
As this Reuters report notes:
Texas tort-reform measures have made it one of the hardest places in the United States to sue over medical errors, especially those that occurred in the emergency room …. To bring a civil claim in Texas over an emergency-room error, including malpractice, plaintiffs have to show staff acted in a way that was “willfully and wantonly negligent,” meaning that the staff had to have consciously put Duncan or others at extreme risk by releasing him, rather just having made a mistake.
In other words, tort reform in Texas means you can’t sue a doctor or nurse for making a mistake, even a stupid, fatal one. Or even one that might end up causing multiple fatalities if Duncan gave the virus to others after he was allowed to leave the emergency room.
For me, that makes this case a great way to take another look at tort reform, from lots of angles.
Would polling tell us that most people think the erring doctor or nurse should be able to be sued? Or would polling tell us that people think Texas legislators were right to protect doctors, nurses and their hospitals from legal harassment by reining in the trial lawyers?
Indeed, the facts of this case seem to present a fresh way to debate whether doctors or nurses, who make honest mistakes under pressure in an emergency room, should be shielded from suits. Because for every suit involving an awful mistake like this one, there could be more suits involving honest judgment calls that turn out to be wrong. Or even turn out to be right but are brought because the outcome was tragic and the lawyers think they can force a settlement?
Texas’ tort-reform law has been on the books since 2003. Has emergency-room care in the state declined in any noticeable way because, as the plaintiff’s lawyers always claim in fighting tort reform, doctors know they are not nearly as likely to be held accountable in court?
Has the practice of so-called defensive medicine, in which doctors over-test and over-treat patients so they can tell a jury they did everything they could, been reduced? One way to measure that would be to calculate the number of MRIs and CT scans given per patient before and after the law took effect.
As I have found in researching a coming book on the economics and politics of US healthcare, doctors and hospital administrators routinely use the fear of malpractice suits as an excuse for using these high-profit tests at a far higher rate than doctors in any other country.
Have hospitals tightened their own quality-control and disciplinary processes because they know that doctors don’t have to worry about lawsuits and, therefore, want to add accountability measures of their own to deal with staff mistakes?
Or have they loosened discipline because they don’t have to worry about being sued for their staffs’ mistakes?
2. Ebola and medical bills:
I can’t help but wondering what Duncan’s medical bills look like — and who is going to pay them.
As a Liberian, he can’t possibly have had health insurance covering his care in Texas. But I assume his family is not going to get a $1-million or $2-million bill from the hospital. (Which would add insult to injury, given how his case was mishandled.) So who’s on the hook for all those expenses?
Is the federal government picking up the tab because Ebola is some kind of special-category emergency? If so, what would the legal basis be for someone, like Duncan, with a headline-making, life-threatening disease to be treated for free while others who show up at a hospital with a more conventional emergency are asked to pay, with the hospital stuck with the tab if they don’t pay? While we are on the subject of bills, who is paying for the monitoring of all the people Duncan had contact with whose conditions need to be watched throughout the possible 21-day incubation period?
3. Ebola and freedom
The Ebola threat also offers a fresh context for a story having to do with the legal framework under which important decisions about basic freedoms have to be made by various officials.
What if those people don’t want to be monitored? What if those who show symptoms don’t want to be isolated? What does Texas law say about that? Or does federal law supersede state law, and if so, what is the law?
There has also been speculation that Duncan was not given a drug made available to two healthcare professionals flown to Atlanta and successfully treated. Supposedly, the supply of the drug had been depleted. That raises the question of who makes decisions about giving out lifesaving drugs that are in short supply.
4. Ebola and personal responsibility:
Although the Ebola Texas story has received saturation coverage, one detail we still don’t know is the name of the nurse and/or doctor who made the mistake of sending Duncan home. How come?
Yes, I would like to read a story about the person who made the mistake. What is his or her record? Was the emergency room busy when Duncan showed up? Or was the staff sitting around with little to do, yet still failed to react carefully enough? And were policies, explicit or implicit, in place encouraging them not to admit uninsured patients whose bills are likely to go unpaid?
What disciplinary action did, or will, the hospital take? What usually happens in a situation like this at that hospital and at hospitals generally?
But more than that, I would like to see a story exploring the issue of personal responsibility and public accountability when private people make mistakes that have huge public ramifications. I was wondering about this a few weeks ago, when a few Secret Service officers obviously screwed up by allowing Omar Gonzalez to jump the White House fence and make it all the way into the East Room.
What are the reasons for naming or not naming these people?
This story, a regular feature, originally ran on Reuters.com.
Steven Brill , the author of Class Warfare: Inside the Fight To Fix America’s Schools, has written for magazines including New York, The New Yorker, Time, Harper’s, and The New York Times Magazine. He founded and ran Court TV, The American Lawyer magazine, ten regional legal newspapers, and Brill’s Content magazine. He also teaches journalism at Yale, where he founded the Yale Journalism Initiative.