Sacramento, CA (Law Firm Newswire) October 27, 2014 — Ebola Patient Zero, Thomas Duncan, sought help at Texas Presbyterian Hospital and was sent home with antibiotics. Scant days later, he died. Two nurses then tested positive for the deadly virus.
“A wrongful death case in the making?” asked Sacramento wrongful death attorney, Deborah Barron. “It is a possibility being discussed by his family. Would such a lawsuit win in Texas? California? Hospitals handling Ebola in the U.S. face virgin territory, and no one can state for a fact what the accepted standard of care is yet.”
Texas hospital staff and management defended their care protocol, claiming that the institution changed with each new care guideline bulletin sent out by the U.S. Centers for Disease Control and Prevention. No one knew what to expect. Everyone knew the disease killed more than it let live; all the more reason for caution in diagnosis.
Duncan was seen by nurses and doctors in the ER, and their active care is less at issue than their failure to act. Duncan stated that he had just arrived from Liberia and registered a fever of 103°F, but he was sent home with antibiotics. It is possible that the misdiagnosis led to a wrong death through preventable error. If an individual caught the virus after Duncan was misdiagnosed and released, there would be further grounds for a legal claim.
All members of the medical team Duncan saw had access to his intake information. Whether or not that information was read and understood is another matter. The apparent lack of attentive self-care certainly could be construed as negligent. Preventable medical errors – from infections and botched surgeries to misdiagnosis and incorrect medication administration – are the cause of at least 210,000 deaths in the nation each year.
“Ebola misdiagnosis resulting in death could be pursued in court – though more so in other states. Texas is noted for its almost heavy-handed, health-care-professional-friendly legislation, which often fails to stand behind malpractice victims,” Barron added.
Damages that may be awarded to a survivor in a wrongful death lawsuit fall into three categories: punitive, non-economic and economic. Economic damages may include loss of earnings, loss of inheritance, loss of benefits medical costs and funeral costs. Non-economic damages may address loss of consortium, loss of care or nurturing and damages for a survivor’s pain, suffering and mental anguish. Punitive damages address egregious conduct, but they may not be available in wrongful death actions. Although California does have tort reform (meaning any medical malpractice lawsuit awards have a monetary cap), wrongful death lawsuits are approached somewhat differently.
“Wrongful death lawsuits are complex. In virtually all instances, you need the assistance of an experienced attorney to help guide your case to a final resolution, and a just and equitable award,” said Barron.
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