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Hospital nurses who contracted Ebola have limited legal options under Texas law.

Summary: Two nurses who were exposed to the deadly Ebola virus at the Texas Health Presbyterian Hospital in Dallas are now in isolation receiving treatment at ...

Two nurses who were exposed to the deadly Ebola virus at the Texas Health Presbyterian Hospital in Dallas are now in isolation receiving treatment at highly specialized healthcare settings.

But it is likely any legal effort they make in response to the pain and suffering they experienced from the illness will be limited, perhaps with workers' compensation as their only option.

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"Texas is unique, in that private employers in Texas can choose whether or not to provide their employees workers' compensation coverage," Nora Freeman Engstrom, a professor at Stanford law school, told InsideCounsel.

Depending on what Texas Health Presbyterian elected, and assuming the nurses are covered by workers' compensation, it "would very likely be the exclusive remedy for all injuries that arise out of and in the course of employment, meaning that the nurses could not sue the hospital for damages."

"They would instead receive modest workers' compensation benefits," she added. "If the hospital has elected not to offer WC [worker's compensation] coverage, then the nurses could potentially assert claims against the hospital, alleging that, but-for the hospital's failures, they would not have contracted the Ebola virus."

One influential nurses' association, National Nurses United (NNU), has pointed out that nurses at the hospital have said that "no one knew what the protocols were or were able to verify what kind of personal protective equipment should be worn and there was no training."

In recent days, NNU has stated that "ongoing revelations about Texas Health Presbyterian further emphasize the need for President Obama to immediately order all U.S. hospitals to meet the highest uniform, national standards and protocols to safely protect patients, all healthcare workers and the public."

It appears that nurses at the hospital treating Ebola patient Thomas Eric Duncan had their necks exposed, with some nurses covering the bare area with simple medical tape, based on public statements made by a nurse at the hospital, Briana Aguirre, who stepped forward to become a whistleblower on the situation.

Before he died, Duncan produced lots of bodily fluid containing the Ebola virus. These fluids are the way that Ebola can be passed on to another person.

One nurse who treated Duncan, Nina Pham, was later found to have Ebola and she received treatment at Texas Health Presbyterian Hospital and is now at the National Institutes of Health in Bethesda, Md. The NIH has room in its specialized facility for two Ebola patients. Another nurse, Amber Vinson, who also treated Duncan and later flew from Dallas to Cleveland on a commercial passenger jet, is now at Emory University Hospital in Atlanta, also receiving care in a specialized unit. She had asked the Centers for Disease Control (CDC) whether it was okay for her to board the commercial passenger jet, and reportedly a representative said yes, despite the fact she had a slight fever at the time. It is possible other healthcare workers who treated Duncan could contract the Ebola virus, and officials said they are being monitored for symptoms.

The Dallas hospital, meanwhile, says it followed protection guidelines from the CDC, when treating Duncan, including the nurses wearing shoe covers, face shields, and possibly an N-95 mask, news reports said.

During testimony before Congress this week, Dr. Daniel Varga, chief clinical officer of Texas Health Resources (the Dallas hospital's parent company) testified, "We don't yet know precisely how or when they were infected, but it's clear that there was an exposure somewhere, sometime."

It was also claimed that a room in the part of the hospital where Duncan was treated was stuffed with medical waste, according to a WFAA report.

To get an idea of how fearful people are of medical waste from Ebola, Louisiana Attorney General Buddy Caldwell requested and got a temporary restraining order to block the disposal at a Louisiana landfill of incinerated waste from Duncan's personal items and belongings.

Six truckloads of potential Ebola contaminated material collected from the apartment where Duncan lived were brought to Port Arthur, Texas, to be burned at the Veolia Environmental Services incinerator.

Before the court order, the incinerated material was to be transported to the Chemical Waste Management hazardous material landfill in Louisiana's Calcasieu Parish.

Chemical Waste Management said it would not accept the ash, but the temporary restraining order makes the ban legally binding, temporarily, so the company cannot accept or dispose of any incinerated ash or other medical waste connected to Duncan's Ebola-exposed materials.

"We certainly share sadness and compassion for those who have lost their lives and loved ones to this terrible virus, but the health and safety of our Louisiana citizens is our top priority," Caldwell said in a statement. "Even the CDC and our health care workers seem uncertain as to the effectiveness of purported protocols in dealing with Ebola. There are too many unknowns at this point, and it is absurd to transport potentially hazardous Ebola waste across state lines. We just can't afford to take any risks when it comes to this deadly virus."

The temporary restraining order will remain in place until a hearing will be held before Judge Bob Downing on Oct. 22 on whether to grant the state a preliminary injunction regarding the incinerated medical waste.

Nationally, hospitals are holding drills and reviewing their policies for treating Ebola patients.

In a statement released earlier this month, Dr. Ken Anderson, COO of the American Hospital Association's Health Research & Educational Trust, said, "Hospitals have plans in place to protect and care for all of our patients while safeguarding the health of our employees. We urge hospitals to review their procedures and update them as needed to meet the latest CDC guidance and best practices to protect health care workers."

Duncan went to the Dallas hospital's emergency room with a fever and told a nurse he had been in West Africa, where Ebola is widespread, but the information was never relayed to a doctor, who prescribed an antibiotic for him. He was sent home, and returned a few days later. He remained at the hospital until his death. His family would likely have a challenge in bringing any lawsuit against the hospital or its doctors, given that Texas requires a higher level of negligence, to prove a case, than in many other locations,InsideCounsel has reported.

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Publication:Inside Counsel
Geographic Code:1U7TX
Date:Oct 17, 2014
Words:1117
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