As reports had surfaced about the condition of Duncan, a series of questions about his travels abroad, an apparent 103 degree fever he had while in a Dallas hospital, his insurance status and other activities have cropped up. Duncan, of the African county Liberia, was in and out of the Texas Health Presbyterian Hospital, which has subsequently issued a statement defending its care for Duncan amid concerns Duncan was not given proper care.
Some are alleging Duncan’s race and insurance status may have hampered his treatment, however, there are many variables in play with respect to possible litigation. The Texas Medical Association summarized some of the statutes pertaining to medical liability law, which according to some experts are particularly beneficial to medical providers in the state.
The statute calls for: “Pre-suit notification, expert reports early in the litigation process, caps on damages and a 2-year statute of limitations,” according to literature from the Texas Medical Association. “In the intervening decades, parts of the statute have been declared unconstitutional and other parts have been judicially refined. In 2003 the Texas Legislature made significant changes to [the Medical Liability and Insurance Improvement Act] and re-codified it in the Civil Practice and Remedies Code.“
The two year statute of limitations applies to the time of injury, not the time of death. There is a $500,000 limit on awards, adjusted for inflation, and the non-economic loss is limited to $250,000 per claimant, as well.
Kirsten Rabe Smolensky, a former law professor who has written regarding the rights of the deceased, said public health emergencies can allow for the suspension of certain rights generally granted citizens. For example, the family of the deceased may be limited in the type of post-mortem services their traditions may call for. Bringing suit against the state may not make a difference either.
“At first glance, I find it difficult to believe that any suit by the family would be successful. Public health concerns likely trump any right the family or the decedent has to a certain type of burial and/or funeral service,” she said. “Generally, the government has the ability to take away all sorts of legal rights if a person poses a threat or potential threat to the health and safety of the public. This is why the government is able to quarantine a person … when there is evidence that a person has or may contract an infectious disease like Ebola.”
She said while the dead do have rights, they are not equal to those of the living. “If there is any evidence that a particular method of burial would to pose a threat to public safety I doubt the family would have a valid cause of auction, either on the decedent’s behalf or on their own behalf,” she said.
As the threat of Ebola infections looms, many agencies and governments have put in place procedures for dealing with infections.
Health officials also have protocol in place dealing with the remains of Ebola victims. Handling the remains should be done with as little contact with the body as possible, according to information from the Centers for Disease Control and Prevention. “Remains should be cremated or buried promptly in a hermetically sealed casket,” information from the CDC reads. Transmission is possible though bodily fluid even after the patient has died.