Ebola: Legal implications for hospitals, healthcare workers

Every hour of the day, it seems we learn new details about Ebola; how it's treated, how it spreads, what protective gear healthcare workers should wear and what precautions they should take when caring for patients with the deadly virus.

One thing is clear: The Centers for Disease Control and Prevention (CDC) and Texas Health Presbyterian Hospital in Dallas made serious mistakes in the way they handled the first confirmed case of Ebola. There appears to be many missteps, from lax guidelines to reports that healthcare workers didn't receive proper training to the fact that a nurse who treated the patient who later died was allowed to board an airplane even though she began to exhibit symptoms of the virus.

The Dallas hospital, which botched the handling of Ebola from the beginning, is not only in the midst of a public relations and infectious disease nightmare, it may be in legal hot water, as well.

To find out the legal implications the hospital may face--and the legal rights of the medical workers who face the greatest risk as they care for patients with the illness--I spoke with Karen Evans, R.N., J.D., an attorney with the Johnnie Cochran Law Firm in the District of Columbia.

From what we know about the incident that unfolded in Dallas so far, Texas Health appears to have violated mandated Occupational Safety and Health Administration (OSHA) requirements, Evans (pictured) said during the exclusive interview.

Under OSHA, she said, hospitals have a legal obligation to provide safe and healthful working conditions for their staff. "It's the duty on the part of the hospital to make sure it takes action to protect employees from recognized hazards to injury or health. It's clear to me as the story unfolds in Dallas, that has not taken place," Evans said.

By not providing nurses with the proper training and personal protective equipment, the hospital failed to protect those caregivers--and their families and friends--from the virus. Nurses typically go home wearing the same clothes they wore when they provided care, according to the Evans. "From the little we know--and I don't think we know enough about how the disease is transmitted--there was either a breach of protocol if they were properly trained or a failure to properly train nurses to protect themselves when caring for the patient," she said.

As for their legal rights, nurses who are employees of the hospital can't sue for medical malpractice, according to Evans. They can, however, file a workers' compensation claim if there is an injury as the result of the work they do. And in some instances, they may also be able to file a third-party claim against the manufacturer of the product (such as the protective gear). "If the representative to the hospital told them that if the individual wears the equipment they won't contract this disease, it may lead to liability exposure of the manufacturer," she said.

However, if the nurse was a contract employee or a traveling nurse, and not an actual employee of the hospital, he or she may be able to sue for medical malpractice, negligence action or fraud, depending on the circumstances, Evans said. And he or she also could sue the product manufacturers.

But what if the hospital claims it properly followed the CDC's guidelines, which the agency has since revised in the wake of the first patient's death and transmission of the virus to two nurses who cared for him?

"At the end of the day I'm not confident that the hospital can delegate or absolve liability," Evans said. "Under OSHA, they legally must provide a safe and healthful workplace. Ebola is a deadly disease. More than 50 percent of the people who contract it pass away. I don't think they can escape liability by saying they followed CDC guidelines. Ebola has been around for a number of years and Doctors Without Borders has been dealing with Ebola and have guidelines. So there was other information available to the hospital to use to gain best practices."

In addition to the frontline healthcare workers, hospitals also need to consider the contractors who interact with providers and administrators. Hospitals also have an obligation to protect these people too, she said. For example, if someone came to the Dallas hospital to dispose of trash and the hospital had infected material in the garbage or didn't properly dispose of linens, he or she may have also been exposed.

"If I was an administrator of the hospital--and every hospital  in America should be concerned about it--I'd be conducting a training session and schedule supervised training to make sure people know how to don gear, and take it off, follow hand-washing guidelines and know how to dispose of infected material like needles, syringes and whatever kinds of equipment comes in contact with the patient," Evans said.

Furthermore, she said, nurses and healthcare workers who refuse to work at the facility for fear their health is in imminent danger due to the presence of Ebola or another infectious disease cannot be fired by the hospital.

"They have whistleblower protection," she said. "The employer has to establish through objective data there is no hazard or that it developed a plan to reasonably protect employees to exposure to Ebola. I've seen nurses talking about their concerns and they should not suffer adverse activity because they spoke on television about the institution." --Ilene (@FierceHealth)

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