Let’s say you just got back from a holiday in Liberia, where, unbeknownst to you, you caught Ebola. You turn yourself into your local hospital with stomach pain and a fever. You even mention that you just got back from Liberia. Let’s say the hospital ER folks – unsuspecting of Ebola — prescribe painkillers and antibiotics and send you on your way. Let’s say you end up dying a horrendous death, and that, if the Ebola had been properly and timely treated, you probably would have survived. Let’s also say that you contaminated your entire family, and some friends and associates, who either died or survived the harrowing illness. Oh, and let’s also say the hospital failed to provide the nurses who treated you with proper Ebola protective outfits, and they got Ebola, too.
Who can sue the hospital? The answers might surprise you.
THE NURSES: In New York, the nurses can’t sue because they are barred by workers’ compensation law from suing their employer. All they get is workers’ compensation benefits. That’s 60% of lost wages. In the case of death, their family gets a measly $50,000 in workers’ compensation benefits. No compensation for pain, suffering, grief.
THE PATIENT: The patient can sue the hospital and the doctors who treated him for malpractice (negligent failure to properly diagnose and treat). The patient can recover pain and suffering and, in the case of death, his family – what’s left of them – can recover for their economic loss (mainly lost income).
THE FAMILY: What about the sickened family members? Can they sue the hospital for having been infected by the patient? If they die, can the family recover for their loss? This is not an easy question in New York. As a general rule, it is tough to sue a doctor or hospital for medical malpractice if you were not the patient. The law generally requires a doctor-patient relationship for a physician’s “duty” to reach you. But exceptions exist, and protecting a patient’s family from Ebola contamination probably would fit the bill. For example, in Davis v. Rodman, 147 Ark. 385, 227 S.W. 612 (1921) infected members of a typhoid-fever patient’s family sued the treating physician on the basis of the physician’s failure to warn and advise them concerning the risk of contagion. The Court found that the physician’s duty to the patient extended to the family to protect them from this highly communicable disease. Also, in Tenuto v Lederle Laboratories, 90 N.Y.2d 606 (1997) New York’s highest court ruled that a physician had a duty to warn a particularly vulnerable parent that the oral polio vaccine he had given to her child could infect her if she did not take certain precautions. Based on this case law, it seems to me that New York courts would probably allow a family member who caught Ebola from the patient to sue the Hospital for failing to diagnose and treat it properly.
FRIENDS AND ASSOCIATES: So far in New York the courts have not extended the duty of a physician to those outside the immediate family. In fact, in Tenuto the Court specifically said that “the physician did not . . . undertake a duty to the community at large”. I can see an argument, though, for extending the duty here. It’s not that the hospital had a duty to warn the friends and associates of the patient – this would be unwieldy. But at least the hospital should have a duty to warn the patient that he has a dangerous communicable disease and that he should take certain precautions not to contaminate others. If the hospital does not even recognize the Ebola, and thus fails to warn the patient of his need to take care not to contaminate others, the hospital should, in my view, be held liable to those others. But honestly I think our Courts, in the anti-tort law environment we live in, would want to reign in “limitless liability” and would disallow such lawsuits.
So there you have it. If you are a nurse you can’t sue, if you are the patient you can, if you are a family member you probably can, and if you are a friend or associate you probably can’t. Go figure. In a sense, Ebola is more even-handed than the law. The virus treats us all equally but our legal system does not.
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Michael G. Bersani, Esq.
michaels-smolak.com Central and Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.