Delayed diagnosis, then workplace infections
This summary of Texas Health Presbyterian Hospital Dallas’ experience with the first Ebola patient in the United States is compiled from statements and data provided by the hospital and the Centers for Disease Control and Prevention (CDC):
Liberia native Thomas Duncan arrived at the Texas Health Presbyterian Hospital Dallas emergency department at 10:37 p.m. on Sept. 25. Fifty-nine minutes later, a triage nurse asked Duncan about his symptoms, and he reported "abdominal pain, dizziness, nausea and headache (new onset)." The nurse recorded a fever of 100.1 degrees F. The nurse did not ask about his travel history because the Ebola screening protocol did not yet require that inquiry.
Duncan was admitted at 12:05 a.m. to a treatment room where a physician accessed the electronic health record (EHR) and visited Duncan, but he did not yet examine the patient. At 12:33 a.m., an emergency department nurse continued Duncan’s assessment and asked about his travel history. She noted "came from Africa 9/20/14." The EHR prompted the nurse to verbally relay the travel information to the physician, but she did not. The physician began examining Duncan and accessed the EHR, which included the travel information (contrary to original reports, which said the EHR did not convey that information). The record also showed that Duncan rated his pain as 8 on a scale of 1 to 10.
The EHR indicates that the attending physician asked Duncan and his companion about Duncan’s personal history and health information. The patient identified himself as a "local resident" and said he had not been in contact with any sick people and claimed he had not experienced diarrhea, vomiting, or nausea.
Documenting nasal congestion, a runny nose, and abdominal tenderness, the physician provided an extra strength pain reliever at 1:24 a.m. A computed tomography scan revealed nothing of concern, but lab results showed a slightly low white blood count, low platelets, increased creatinine, and a mild elevation in the liver enzyme AST. His temperature was noted at 103.0 degrees F at 3:02 a.m. and 101.2 degrees F at 3:32 a.m. The physician diagnosed sinusitis and abdominal pain and sent Duncan home at 3:37 a.m. with a prescription for antibiotics.
Duncan’s condition worsened, and he returned by ambulance on Sept. 28 at 10:07 a.m. with diarrhea, abdominal pain, and fever. Fifteen minutes later, a doctor noted that Duncan recently had come from Liberia and ordered a test for Ebola. At 12:58 p.m., the doctor called the Centers for Disease Control and Prevention (CDC) directly. By 9:40 p.m., Duncan was experiencing explosive diarrhea and projectile vomiting.
On Oct. 10, 26-year-old nurse Nina Pham, who had treated Duncan at the hospital, reported a low-grade fever and was placed in isolation. On Oct. 11, she tested positive for the Ebola virus, becoming the first person to contract the virus in the United States.
On Oct. 14, 29-year-old Amber Vinson, a nurse who also had treated Duncan, reported a fever and was isolated within 90 minutes of reporting the fever. She tested positive for Ebola the next day. Both nurses recovered.
Ebola: What You Need to Know Now
Lawsuits stemming from the care of Ebola patients are possible, but the plaintiff’s burden of proof would be daunting.
Employees, patients, or others who contract Ebola can sue the hospital for not preventing transmission, but the plaintiff would have to prove that the provider failed to meet the standard of care. For Ebola, the standard of care is changing daily, and the hospital would have a reasonable defense in proving that it followed the infection control standard at the time of treatment. However, some plaintiffs’ attorneys will be eager to take on even cases with little viability, just for the publicity.
If a staffer refuses to come to work or care for a potential Ebola patient, tread carefully.
You probably can discipline the employee, but doing so might not be the best choice. Ebola is no different than other infectious diseases that pose a hazard to healthcare workers: If the employee refuses to report to work, then the standard attendance policies that typically include progressive discipline can be followed. However, you should use caution and avoid termination if the employee has a specific concern about the safety of a situation. The National Labor Relations Act protects employees who engage other employees about the terms and conditions of employment, which includes workplace safety.
Expect a workers’ comp claim if an employee is infected with Ebola.
Most state workers’ comp laws will apply to healthcare workers who contract the disease in the course of their jobs. If the infection occurs because the employee didn’t follow the prescribed infection control protocol, the hospital could have grounds to deny the workers’ comp claim. However, workers’ comp laws require you prove willful misconduct to support disqualification. Even gross negligence isn’t enough. You would have to prove that the employee knowingly and willfully did something egregious, which is not likely with Ebola.
Reinforce with employees the importance of complying with the Health Insurance Portability and Accountability Act (HIPAA).
Even staff well trained in HIPAA compliance can let their guard down when a patient is the subject of sensational news coverage and reporters are pestering everyone for information. Remind staff that HIPAA applies.
Consider an all-volunteer Ebola strike team.
Some hospitals use this strategy to avoid the concerns about employees who don’t want to care for Ebola patients. The volunteers can undergo much more training than you are able to provide for all staff, and they can be compensated for serving on the strike team.
Some hospitals are limiting the type of care they will provide to suspected Ebola patients.
To limit exposure of healthcare workers, particularly when their efforts might be futile, several hospitals have stated that they won’t perform CPR on patients suspected to have Ebola. Others have said they will restrict minimally invasive procedures on these patients because their hospitals aren’t adequately equipped to provide that care with extreme isolation measures. The Centers for Disease Control and Prevention (CDC), as well as the American College of Surgeons, recommends that patients with suspected or confirmed Ebola not have elective surgical procedures.
Quarantines for people who might have been exposed to Ebola are the responsibility of government officials.
A hospital is free to tell employees to take 21 days off work to ensure no Ebola infection, but enforcing any quarantine falls to the local health department and law enforcement.
Ebola might change the standard of care.
A "crisis" standard of care applies during declared emergencies, which allows for legal adaptation to the changing circumstances and increased demands. Ebola can prompt a crisis standard of care.
Source: Mark W. Peters, JD, Waller Lansden Dortch & Davis, Nashville, TN; George B. Breen, JD, Epstein Becker Green, New York City; The Network for Public Health Law; CDC’s Public Health Law Program; the American Health Lawyers Association.
