The Supreme Court of Texas has dismissed an Ohio bridal shop’s negligence claim against a Dallas hospital for allowing a nurse who had been exposed to the Ebola virus to visit the shop leading to its closing.[1] The court ruled the claim was a “health care liability claim” under the Texas medical liability law and the shop was a proper “claimant.” However, the store failed to meet the law’s filing requirement for an expert report on issues of causation and liability.
Facts
In September 2014, Texas Health Presbyterian Hospital of Dallas cared for a patient infected with the Ebola virus who died. Amber Vinson, a nurse at the Hospital, cared for the patient until his death.
Relying on the Hospital’s assurances that it was safe for her to go out in public after the patient’s death, Vinson traveled to Akron, OH and visited the bridal shop.
Upon returning to Dallas, Vinson became ill and was diagnosed as having contracted the Ebola virus. Ohio health authorities learned Vinson had visited the bridal shop and ordered the store to close to prevent the virus’s spread. The shop was cleaned to prevent contamination and briefly reopened. Due to Ebola fears, its bridal clothing business did not recover, and the shop closed permanently.
Allegations
The owner sued Texas Health Resources (THR), the Hospital’s parent company, for negligence, gross negligence, and exemplary damages in failing to prevent transmission of Ebola to the nurse due to the Hospital’s lack of precautions and training. The shop alleged that THR’s negligence caused it to close due to health concerns and adverse publicity. The suit alleged THR failed to:
- Recognize the danger of the Ebola virus coming to its hospitals;
- Develop and implement policies and procedures on how to respond to the presence of the Ebola virus in the patient population;
- Ensure that all health care providers were trained on policies and procedures on how to recognize, appreciate, contain, and treat the Ebola virus in the patient population;
- Train nurses on proper protection from Ebola;
- Ensure that the Hospital had appropriate personal protective equipment;
- Notify the appropriate authorities and employ qualified people to manage Ebola patients;
- Instruct and warn its nurses about the dangers of travel and interacting with the public following potential exposure to the Ebola virus; and
- Protect the public from foreseeable harm when it unnecessarily exposed its nurses to the virus in an unsafe manner and failed to prevent or warn exposed nurses from interacting with the public.
Arguments
THR moved to dismiss the lawsuit asserting that the Texas Medical Liability Act applied to the lawsuit, the claim was a “health care liability claim,”[2] and the bridal shop must submit an expert report detailing a factual basis for, and a qualified opinion in support of, the claim.[3] The Act requires an expert report must state a fair summary of the applicable standards of care, the manner in which the care rendered by the provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.[4]
The bridal shop responded that it had not alleged a health care liability claim because:
- its allegations did not have a substantive nexus with the Hospital’s health care duties;
- it alleged purely economic damages and a health care liability claim requires a claim for personal (bodily injury or death) damages or non-economic damages; and
- the shop is not a patient or a single person with a bodily injury or death claim.
The trial court agreed with the bridal shop and dismissed THR’s motion. The appellate court
reversed the trial court, and the Texas Supreme Court granted review.
Opinion
The court ruled:
- the Texas Legislature’s replacement of “patient” with “claimant” in the definition of a “health care liability claim” and defining “claimant” to be a “person, including an estate” expanded the statute beyond patient claims;[5]
- a “person” is not limited to a human being because the Act does not define “person,” the Legislature and the common law directs that the meaning of “person” includes a corporation,[6] and the Act contemplates that a “claimant” can be a legal entity by including a decedent’s legal estate in its definition;[7]
- the definition of “claimant” does not limit a claimed injury to those resulting from the bodily injury or death of a single person;[8]
- if a plaintiff has asserted a health care liability claim, then it is a “claimant” even though the plaintiff was not a patient or the patient’s representative;[9]
- a “health care liability claim” includes a claim based on alleged departures from safety, professional, or administrative standards, directly related to health care, that cause an injury to a claimant;[10]
- a hospital’s alleged negligence in controlling the spread of a virus to its nursing staff and the public implicate safety standards directly related to health care and treatment of an infected patient, even if the claim arose after the patient has died;[11]
- the question of contagion and its prevention in a hospital setting is duly related to the provision of health care;[12]
- the definition of “claimant” did not qualify the type of injury, limit the definition of injury to bodily injury, or require allegations of some type of personal injury;[13]
- the Act governs economic and non-economic damages;[14]
- an expert report is required to establish that the Hospital’s training, treatment, and infection control policies departed from appropriate hospital standards of care, treatment, and prevention of the spread of the Ebola virus; the Hospital failed to implement appropriate Ebola treatment, training and infection control policies; these departures and failures created the circumstances necessary for an infected person to contaminate the store; and these departures and failures proximately caused the shop’s contamination and the corresponding risk that the Ebola virus would spread to its patrons;[15] and
- expert testimony about lost business value is beyond the scope of the Act.[16]
Repeat in San Antonio Coronavirus Case?
On Saturday, February 29, 2020, the Texas Center for Infectious Disease (TCID) in San Antonio, TX, released a female patient from quarantine, who had tested positive for SARS-CoV-2, with the approval of the Centers for Disease Control and Prevention (CDC). The patient, who had been evacuated from Wuhan City, China on February 7, was the only one of 91 evacuees to test positive for the rapidly spreading coronavirus. TCID released the patient from quarantine after the patient had tested negative on tests for the virus. The patient checked into a local hotel, took the hotel’s shuttle to a mall, shopped and ate in the mall, and returned to the hotel.
CDC said the patient was asymptomatic at discharge from TCID and met all its criteria for release— resolution of any symptoms and negative test results from two consecutive sets collected more than 24 hours apart. CDC’s results of a subsequent sample were determined to be “weakly positive.”
CDC contacted TCID and requested the patient be returned to quarantine. During 12 hours of release, the patient potentially exposed 18 individuals at TCID, three at the hotel, and an unknown number at the mall.
Reaction to the CDC’s statement was immediate. The San Antonio mayor declared a “local state of disaster” and a public health emergency. The mall was shut down, cleaned, and decontaminated.
The City of San Antonio sued the CDC, the Department of Health and Human Services, the Department of Defense, the U.S. Surgeon General and the Attorney General for equitable relief and to take steps allowed by law to prevent the spread of communicable disease by exercising their quarantine powers.[17]The suit was dismissed shortly after its filing.
The Texas governor called the CDC’s action “unacceptable” and accused the CDC of negligence in approving the patient’s release back into the general population.[18] A store owner in the re-opened mall said: “The news will likely affect business but there’s nothing you can really do.”[19]
The bridal shop case and the San Antonio incident should be understood by hospitals, local and state public health authorities, and CDC to underscore the magnitude of not establishing and implementing appropriate safety standards. To combat the “community spread” of viruses such as Ebola and SARS-CoV-2, requires not only mitigating the risks of exposure and disease but also managing the concerns of the public and local and national businesses.
Mr. Lefko is a solo health law attorney in Dallas, TX. In addition to his law degree, he has a Master of Public Health degree from the University of Texas School of Public Health in Houston, TX. Mr. Lefko had a 10-year career in health care and hospital planning and has practiced health law for 35-years as in-house counsel and a law firm partner.
_________________________________________________________________________________________
Endnotes
[1] Coming Attractions Bridal and Formal, Inc. v. Texas Health Resources, No. 18-0591, 2020 BL
62330, 2020 TX Lexis 137 (Tex. Feb. 21, 2020).
[2] Tex. Civ. Prac. & Rem. Code, § 74.001(a)(13).
[3] Id. § 74.351(a).
[4] Id. § 74.351(r)(6).
[5] Bridal v. Tex. Health Res., at 2-3.
[6] Id.
[7] Id. at 3.
[8] Id.
[9] Id.
[10] See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13).
[11] See Bridal v. Tex. Health Res., at 4.
[12] Id. at 4.
[13] Id. at 5.
[14] Id.
[15] Id.
[16] Id. at 6.
[17] City of San Antonio v United States of America (W.D. Tex. Mar. 2, 2020).
[18] San Antonio, Bexar County in battle with CDC over evacuees in coronavirus quarantine, San
Antonio Express-News, Mar. 2, 2020, https://www.expressnews.com/news/local/article/San-Antonio-to-feds-Keep-coronavirus-evacuees-in-15098761.php.
[19] North Star Mall temporarily shuts down after coronavirus exposures, San Antonio Express-News, Mar. 2, 2020, https://www.expressnews.com/business/local/article/North-Star-Mall-temporarily-shuts-down-after-15100309.php.
©Copyright 2020, American Health Lawyers Association, Washington, DC. Reprint permission granted.