By Joshua Urquhart on October 22, 2014
Well, the Ebola scare is all everyone is talking about. A colleague brought up an interesting question earlier in the week: What sort of potential liability do health care facilities face from it?
There are lawsuits anticipated from the family of the first victim as well as at least one of the infected health care workers who treated him. With respect to the first of those, from what I read, the potential lawsuit seems doomed. With respect to the health care workers, if the treatment protocols were as inconsistent and ineffective as claimed, then they likely will have a better chance of success under OSHA or workers’ comp laws.
I’m more interested in what might happen if other patients become sick. Hospital-acquired infection cases are not novel; they’ve been tried for decades. The general consensus of plaintiffs’ lawyers is that they are difficult but not impossible to win. That difficulty only increases with the publication of comprehensive Ebola treatment guidelines by the Centers for Disease Control and Prevention (assuming hospitals follow them, of course).
But “difficult” is not “impossible.” And, even setting aside liability concerns, hospitals and other health care facilities understandably may be reluctant to expose their health care workers to Ebola patients. One way to address this concern is to systematically transfer patients to specialized care facilities designed to contain Ebola and similar viruses – and indeed, it appears that the federal government already is going down that road. But if the crisis grows, there is no guarantee that beds will be available in those bio-containment units, and in any event, a transfer takes time, and it is likely that an Ebola patient will require on-site treatment for hours or days before the patient can be transferred.
That’s the important point to note. Treatment will be required. Hospitals cannot just isolate patients and wait – without treating them – until they can be transferred, or they die (if no transfer is available). If nothing else, as the victim’s family’s potential lawsuit shows, hospitals are at risk of being sued for malpractice if they fail to provide adequate care. So a facility is going to have to balance the competing obligations of minimizing contact between the Ebola patient and health care workers and providing a sufficient level of care.
What is the proper balance on that score? I’m afraid I don’t have a good answer, probably because there isn’t one. A lot of it will have to do with how many new patients present with Ebola, and what their acuity levels are. But health care facilities need to recognize that it’s a “damned if you do, and damned if you don’t” situation. If nothing else, it’s probably advisable for hospitals to start thinking now about how they will respond to that unenviable dilemma.