Tough Texas Medical Malpractice Laws May Mean Duncan’s Family Doesn’t Have a Case

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The Texas man who was afflicted with the Ebola virus died this week, leading his family to ask for an investigation into the care he received at the Texas hospital where he was treated.

According to Chicago Tribune, Thomas Duncan died of Ebola on Wednesday. Top infectious disease doctors have said that Duncan may have lived if he has received treatment earlier, and it is on the basis of these statements that the family is asking for an investigation.

Duncan first went to the emergency room at Texas Health Presbyterian Hospital Dallas on September 25. After being seen, he was given antibiotics and sent home. Though Duncan had expressed to a nurse that he had just come to the United States from West Africa, that information never made it to the physician who treated him.
Duncan first went to the emergency room at Texas Health Presbyterian Hospital Dallas on September 25. After being seen, he was given antibiotics and sent home. Though Duncan had expressed to a nurse that he had just come to the United States from West Africa, that information never made it to the physician who treated him.

Duncan first went to the emergency room at Texas Health Presbyterian Hospital Dallas on September 25. After being seen, he was given antibiotics and sent home. Though Duncan had expressed to a nurse that he had just come to the United States from West Africa, that information never made it to the physician who treated him.

The hospital first claimed that there was a flaw in the electronic records keeping system that caused the information to go unnoticed, but later retracted that statement and asserted that there was no flaw in the system and that the information was in fact available to the doctor. There is no apparent explanation of why Duncan was not suspected of having Ebola.

The other Ebola patients who were treated in the U.S. were all diagnosed early. This means that their bodies received the right supportive care to allow their organs to function while their bodies fought the virus.

Duncan was not treated for days after his symptoms appeared. He also could have received an experimental drug, called brincidofovir. Duncan’s nephew, Josephus Weeks, told the Chicago Tribune that though the family begged for more treatments, the doctors only treated Duncan with “saline, oxygen and water.”

The speculation now is that Duncan’s family will attempt to file a wrongful death suit citing medical malpractice. The damage awards for medical malpractice cases average $600,000.

However, legal experts say that the chances of Duncan’s family receiving any damage awards are slim.

Law professor at the University of Texas at Austin Charles Silver told that laws in Texas make it difficult to bring a medical malpractice suit. What the plaintiff has to do in these cases is prove negligence, which is troublesome to do in Texas since the law states that an emergency care professional acting in good faith “is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent.”

Additionally, Stanford University law professor Nora Freeman Engstrom told Inside Counsel that the family would have to prove that Duncan would not have died if he had been diagnosed earlier, which will be tough to do, considering the high fatality rate of a virus like Ebola.

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