Friday, October 3, 2014

Dallas Ebola Patient Could Prove Toxic for Hospital Lawyers

, Texas Lawyer

As officials diagnosed the first case of Ebola in the United States at a Dallas hospital, it may be creating "a nightmare" for the hospital's in-house lawyers, said the former general counsel of a large hospital system.

One of the potential legal issues: There was a two-day delay between when the Ebola patient first visited Texas Health Presbyterian Hospital and when the hospital placed him in isolation.

"I think sweating bullets is probably the right term. I would be concerned," said Ed Barker, who for 25 years was the chief legal officer for SCL Hospital System, which operates facilities from Kansas City to Santa Monica.

According to the Centers for Disease Control and Prevention, the Ebola patient arrived in Dallas from Liberia on Sept. 20. The person was not sick or contagious on the flight, but developed symptoms on Sept. 24. The patient sought treatment at Texas Health Presbyterian Hospital on Sept. 26. On Sept. 28, he showed Ebola symptoms and the hospital admitted and isolated him, according to the CDC.

"The general counsel of Texas Pres[byterian]—or any general counsel for that matter—will be going back and looking at that first point of contact with that patient to make sure the CDC hospital checklist for Ebola was followed," said Barker. "You have to treat somebody—until you have the test results back—as if they have the potential of an infectious disease, especially if they came from a West African country."

Joseph Geraci, a health care law attorney who represents hospitals and other health care entities, noted that federal law requires a hospital to screen and stabilize anyone who visits an emergency room.

"Screening is the most important piece there," said Geraci, a Husch Blackwell partner in Austin. "If it were my client, what I would probably want to do in this new environment of Ebola, which is terrifying everybody ... I would want to review the screening process and to the extent we are not asking patients where they had recently traveled ... maybe that's something we would need to incorporate into the screen."

The Ebola patient told health care workers on his initial hospital visit that he had recently been in an area affected by the deadly disease, but that information was not widely shared, a hospital official said Wednesday, according to The Associated Press. The man explained that he was visiting the U.S. from Liberia, and was sent home with antibiotics, according to the man's sister, the AP reported.

Dr. Mark Lester, who works for Texas Health Resources, the parent company for Texas Health Presbyterian, said a nurse had asked the man whether he had been in any part of West Africa, where Ebola has killed thousands. But that "information was not fully communicated throughout the whole team," the AP reported.

Charles Boes, the general counsel and executive vice president for Texas Health Resources, did not return a call or email seeking comment. According to its website, the company "is one of the largest faith-based, nonprofit health systems in the United States" and has more than 20,500 employees at 25 facilities.

Other Legal Issues

When an epidemic draws national and international attention, hospitals must balance two considerations: the risk of litigation based on failure to diagnose and the need to prevent bottlenecks at facilities due to admittance of patients who have fever or other symptoms but no likely Ebola infection, said Charles Bailey, the general counsel of the Texas Hospital Association, a nonprofit Austin-based group of some 450 membership hospitals.
"The Ebola issue is very, very serious, because with this disease, it's deadly," Bailey said, "but I don't know that the legal issues are different with it than with any other type of communicable disease."

Bailey said hospitals must focus on both patient confidentiality and concerns about failure to diagnose. He said he expects his member hospitals will be taking extra steps so staff can identify patients with communicable diseases, and, specifically as recommended by CDC officials, asking about patients' recent travels.

Bailey also addressed concerns about the possibility of panic spreading among medical staff on the front lines of potential Ebola cases. A hospital staffer who refuses to work in such instances could provide grounds for termination, Bailey said, adding that he hoped "it wouldn't come to that." He noted that an Ebola infection is "difficult to transmit," requiring "direct contact with blood" or other bodily fluids of a contagious person. At the same time, Bailey said, Ebola is hard to diagnose because its initial symptoms resemble those of other illnesses, including simple flu viruses, and he is unsure how many days it takes for blood test results to confirm an infection. Therefore, he said, "a very legitimate" concern exists about claims of "failure to diagnose." He noted that hospitals face such claims "everyday" about hard-to-diagnose ailments.

But with the Dallas Ebola case, Bailey said, the question becomes: "Are we potentially isolating every patient that comes in with a fever and that would cause a bottle neck?"

Barker guessed that Texas Health Presbyterian's legal staff may be struggling with the duty to answer the public's questions while protecting the Ebola patient's privacy rights. He said the hospital's lawyers will likely want to fill an advisory role for the clinical team by answering questions and educating staff. Also, the lawyers must formally notify the state and federal governments that it has an Ebola patient, as well as send notices to anyone who came into contact with the patient.

Geraci said the hospital's lawyers might be spending a lot of time on employment matters.

"You are asking your health care workers to be put in harm's way. What is you liability to those health care workers?" he said. "The health care workers that are treating this person and that were exposed to this disease—like the people who did the first screens—what are you doing as far as testing them? Are you going to quarantine them? What about their families? I would guess that would be eating up a lot of time."

Geraci added that although there might be various legal issues involved in treating an Ebola patient, he wouldn't want those legal matters to disturb the "larger public health issue" of minimizing the risk that Ebola might spread.

He noted that both federal and state law gives the government "pretty broad" power to stop the spread of disease by quarantining people who were exposed and isolating those who become ill—whether they agree to it or not.

But while dealing with the public health emergency, Geraci said, the authorities should also "respect to the extent possible the rights of the individual."

He added, "The greater good, of course, is making sure this does not become a public health disaster, but there are ways you can do it while still respecting our core fundamental beliefs, as a society, of privacy and self determination."

Lisa Hernandez, the general counsel for the Texas Department of State Health Services, did not return a call for comment.

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