The Ebola outbreak, which at first seemed like a distant fear, has become a reality in the United States, especially for the family of Thomas Eric Duncan. Duncan was the first individual to have died from Ebola on American soil. In the aftermath of his death, there has been speculation as to whether Duncan’s family will pursue a liability lawsuit against the hospital that treated Duncan. However, under Texas Law, it would be very difficult for Duncan’s family to succeed with any claims against the Hospital.

The Facts

On September 25, 2014 Thomas Eric Duncan went to Texas Health Presbyterian Hospital where he was treated for a fever, abdominal pains, and vomiting–all symptoms of Ebola. Duncan was not tested for Ebola, and in fact, he was sent home with pain relievers and antibiotics. He was diagnosed with Ebola after returning to the hospital when his symptoms worsened. On October 8, 2014, Duncan died.

The Law

In 2003, Texas passed a tort reform that gave an extra layer of protection against civil liability lawsuits for Emergency Room doctors and nurses. Under this reform, plaintiffs must demonstrate “willful and wonton” conduct in order to prove negligence. This is one of the highest legal burdens to prove in the country.

This standard requires that the individual’s conduct creates “an extreme risk of danger” and that the individual has “actual, subjective awareness of the risk involved and chooses to proceed in conscious indifference to the rights, safety, or welfare of others.” Relating to this situation, to successfully prove negligence, Duncan’s family must show that the ER doctors not only created an extreme risk of danger, but that they actually knew about the danger, and continued to act in a manner that demonstrated their indifference toward Duncan. An important aspect of this question would be to determine what exactly the doctors and nurses knew about Duncan’s condition during his first visit.

Even if liability were proven, the tort reform established a $250,000 cap for non-economic damages in a healthcare lawsuit. So even if Duncan’s family were able to prove willful and wonton negligence, they would most likely be limited to $250,000 in damages.

The Reality

The harsh reality is that Duncan’s family probably has a slim chance at succeeding in a lawsuit against the hospital. On one hand, the 2003 tort reform has been a major success. It has caused medical malpractice claims to decrease by nearly two thirds between 2003 and 2011. On the other hand it begs the question, “at what cost?”

Melissa Klafter

Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at staff@LawStreetMedia.com.

The post Slim Chance of Legal Recourse for Family of First American Ebola Death appeared first on Law Street.

So as I predicted in my previous article, issues of liability were around the corner. It looks like they came sooner than expected and from an unexpected volunteer. On Tuesday, Malaysia Airlines announced the first batch of payments it would make to families of passengers on Flight 370. The amount? $5,000 per passenger. This pre-emptive payment is not by any means the final payment by Malaysia Airlines, as the Montreal Convention set the $150,000 threshold, and experts expect next of kin compensation could eventually exceed millions of dollars per passenger.

So far, Malaysia Airlines has also provided money for food, lodging, and any travel expense the families may have since the incident unfolded on March 8. The airline has pledged to continue this aid for as long as possible. But with more and more people assuming all lives have been lost, people are turning their eyes toward compensation for the families of passengers.

One attorney, Monica Kelly, spoke to CNN and said that within her experience, Malaysia airlines may be forced to pay between $400,000 and $3 million per family.

Another attorney, Mike Danko, said the amount of money families are awarded has a lot of to do with where they filed a lawsuit. For instance, U.S. courts will probably give families more money than those in China. Passengers on Flight 370 came from 14 different countries, so lawsuits could be filed in any of those.

At least in the US, one of the more difficult (and arbitrary) set of decisions will come when the courts decide how much each family gets… by figuring out how much each person’s life was worth in the first place. Each passenger will be assessed separately, and the amount of money awarded to each family is decided on a number of factors. For instance, someone with 3 small children may receive more money than a single person in his 40s.

But Malaysia Airlines may have some help, as well. Airlines tend to be covered by insurance policies ranging between $2 to $2.5 billion, with as much as $10 million set aside by each passenger, according to Brian Havel, director of the International Aviation Law Institute at DePaul University.

And as previously discussed, the logistics surrounding this still-missing aircraft could slow the process down. But assuming a long period of time goes by and no sign of the aircraft is found, courts might go ahead and rule the passengers as deceased, allowing families to sue for damages and collect life insurance.

[CBS] [CNN] [Yahoo]

—

Molly Hogan (@molly_hogan13)

Featured Image Courtesy of [Allen Watkin via Flickr]

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post First Payments from Malaysian Plane Crash: Only $5,000? appeared first on Law Street.

Two weeks in, everyone with a television knows about the disappearing Malaysia Airlines Flight 370. And even if you don’t, turn on just about any news station, and within two minutes you’ll get the gist of it. Recently the Prime Minister of Malaysia said the flight crashed in the Indian Ocean, and rumors about what actually happened are still floating around. But one thing that hasn’t been discussed as heavily as the conspiracy theories: Who is liable?

To be frank, things like this are logistical nightmares. Before compensating families of victims, a number of questions need to be answered: who is responsible for what happened? Does the fact  that no remains have been recovered (yet) make a difference? Would foul play affect the amount of money families are eligible to receive? And, perhaps most basically, who will actually have to pay?

Luckily, we have some answers to these questions. Back in 1999, the Montreal Convention, which outlines rules and rights that passengers have in international air travel, was adopted. In response to who is liable, the article 17 of the treaty puts it quite simply- “the carrier is liable for damage sustained in case of death or bodily injury of a passenger”. The convention even goes on to describe how much money they must pay to compensate for death or injury of passengers. After some conversions, we find that amount is roughly equivalent to $150,000. (Yep, that is a cost of life now a days). Now, if the family members suing the airline aren’t claiming damages worth any more money than that, the airline can’t “exclude or limit its liability.” Basically, the airline is on the hook.

But this is the 21st century, and it would be surprising if families didn’t sue for much, much, more. This is where we hit a fork in the road. According to the Convention, if the crash was the airline’s fault, courts could rule in favor of passengers, giving their families more money. But if the airline wasn’t negligent, or if a 3rd party alone (like a terrorist group) caused the damages, Malaysia Air might be off the hook in paying damages.

So, what’s the most obvious problem with all of this? We don’t know what happened. We don’t know if it was a mechanical failure, if the pilot made a mistake, or if this was intentional. Until there is evidence of a crash, let alone who is at fault for it, determining who is liable for what will be difficult at best, and impossible at worst. Unfortunately, the Montreal Convention didn’t account for this potential lack of information.

But assuming we get the answers to at least some of these questions, there are still a number of things to address.

First, where will these lawsuits take place? In Malaysia, where the airline is based? Or, in the home countries of those presumed dead? The Montreal Convention accounts for this as well. The most likely place for these lawsuits to take place will be the home of the airline, the homes of the passengers on the flight, or the destination of the flight. In this case, that means Malaysia, China, and/or the United States could be involved, among others. Obviously, all three of those countries have vastly different court systems, and could rule incredibly differently. So there is a potential for families to be compensated with vast differences depending on where the lawsuit was first filed.

But wait, there’s still more. Not only is there a potential for families to sue the airline, they could sue the maker of the plane- Boeing, or the maker of the engine- Rolls Royce. And these lawsuits could be based just about anywhere.

There’s a lot up in the air about what happened to Flight 370, and a lot of questions still need to be answered before the victims’ families can be compensated. Because there is so much we don’t know, it’s hard to guesstimate how much the airline will be required to pay as a result of this tragedy. But the Montreal Convention, if nothing else, gives us a good baseline parameter.

[BBC] [Montreal Convention] [ABC]

—

Molly Hogan (@molly_hogan13)

Featured Image Courtesy of [Flickr/Abdallahh]

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post Malaysian Airplane Crash: Who’s Liable? appeared first on Law Street.