Court Tosses Injunction in Ebola Nurse’s Case

DALLAS (CN) — A Texas appeals court reversed an injunction preventing a hospital and parent company from adjudicating whether they are co-employers in a negligence case filed by a nurse who contracted Ebola while treating a patient.

Nina Pham of Dallas tested positive for Ebola on Oct. 12, 2014, after caring for Thomas Eric Duncan, the first domestic case of the disease. She was placed into isolation and transported by air ambulance to the National Institutes of Health in Maryland, where she was released after two weeks with a clean bill of health.

Pham sued Texas Health Presbyterian Hospital and corporate parent Texas Health Resources, or THR, five months later in county court, claiming she was used as a "PR pawn" after being given inadequate training and protective equipment.

She alleges her neck and hair was exposed and that she was not provided disposable scrubs or a change of clothes while treating Duncan.

Pham said her privacy was violated during her treatment, turning her into "a symbol of corporate neglect - a casualty of a hospital system's failure to prepare for a known and impending medical crisis."

Presbyterian and THR have tried to get the case tossed, arguing her claims belong in workers' compensation proceedings with the Texas Division of Insurance.

Pham has argued she was employed by Presbyterian, not THR. The trial court later issued a temporary injunction prohibiting attempts at adjudicating whether Presbyterian and THR are co-employers regarding the issue of whether the claims belong in a workers' compensation case.

A three-judge panel with the Fifth District Court of Appeals disagreed, reversing the trial court's order and dissolving the injunction on Wednesday.

Authored by Justice Bill Whitehall, the 17-page opinion concluded Pham failed to "produce some evidence on each element of at least one recognized cause of action to show a probable right of recovery that could support" the injunction.

"Pham's affidavit presents no evidence of cause in fact," Whitehall wrote. "It contains no testimony that she would not have contracted Ebola had THR adopted different policies and procedures, provided her with different training, or provided her with different personal protective equipment."

Whitehall cited insurance adjuster Steven Fisher's notes that stated Pham's exposure to Ebola "appears to be due to the insured's inadequate procedures relating to employee exposure" to Duncan, and that employees were not required to be "completely" covered.

"Fisher's statement, by using the phrase 'due to,' arguably draws a causal connection between Pham's injuries and 'the insured's inadequate procedures,'" Whitehall wrote. "But Fisher does not identify 'the insured,' nor does anything else in the five-page claim notes report. There was evidence, in the form of deposition testimony, that both THR and all of its wholly owned hospitals were insured by the relevant workers compensation insurance policy. So Fisher's reference to 'the insured's' procedures is no evidence that any conduct or omission by THR in particular in fact caused Pham's injuries."

Whitehall reasoned that even if Fisher was referring to THR regarding "inadequate procedures," that statement would still not be "competent evidence of causation" because there is no evidence Fisher was an expert qualified to address causation.

Pham's attorneys did not immediately respond to an email message requesting comment Thursday afternoon.

THR said shortly after the lawsuit's filing that it will continue to show Pham "the utmost courtesy, dignity and respect as a member of the Texas Health family."

A second infected Presbyterian nurse, Amber Vinson, was treated and released from Emory University Hospital in Atlanta.

Duncan did not survive.

Follow @davejourno

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit