Wednesday, March 4, 2015

Non-Competitive Damages

If workers' compensation benefits were adequate to satisfy Nina Pham, would she still pursue a civil lawsuit against the parent company of her employer?

Pham was the first nurse infected with Ebola in the United States. She contracted the disease last fall while caring for the now-deceased Thomas Eric Duncan at Texas Health Presbyterian Hospital.

Texas Health Resources is the parent company of Texas Health Presbyterian.

Pham's suit alleges that THR exercises “an enormous amount of control” over the hospitals and physicians in its system with the goal of having uniformity in nursing.

It says that THR “controlled nursing at Presbyterian, thorough its corporate control of Presbyterian, and through shared decision making in each of the THR system hospitals that are required to report to THR’s Chief Nursing Executive and THR’s Nursing Executive Team.”
Nina Pham - photo ABC News

Pham's suit points to testimony that Dr. Daniel Varga, chief medical officer for Texas Health Resources, delivered last October before a federal subcommittee. Varga testified that last Aug. 1, leaders of Texas Health Resources sent an email that directed all hospitals to adhere to a specified “epidemiological emergency policy” on how to care for patients presenting Ebola-like symptoms.

Varga testified that Texas Health Resources circulated additional information later that day and again on Aug. 13. The company also communicated with the Dallas County Health and Human Services Department about preparations for Ebola in the months leading to Duncan’s admission, according to the suit.

The suit claims Varga also made “numerous” false statements to Congress, such as that the hospital staff was trained to manage Ebola.

“Nevertheless, it is clear from THR’s testimony and the press releases it has issued that THR was directing the Ebola preparedness for its hospitals,” the suit says. “Despite assuming that duty, THR wholly failed to ensure that appropriate policies, procedures, and equipment were in place.”

The Texas Department of Insurance’s online coverage verification database displays Trumbull Insurance Co. as the workers’ compensation coverage for both Texas Health Resources and Texas Health Presbyterian Hospital.

Pham's attorneys told WorkCompCentral that they exhaustively reviewed whether a suit against THR would be barred by the exclusive remedy of workers' compensation and they concluded that THR was not the employer.

I've seen the law go all over the place on this. I don't think this is a slam dunk. But some Texas experts did tell WorkCompCentral that because of the way the petition is plead that it stands a chance at least against early dismissal motions.

According to a one paragraph statement released in response to the lawsuit, THR says it had continued to support Pham both during and after she became ill, and that she’s still part of the hospital’s team.

“As distressing as the lawsuit is to us, we remain optimistic that we can resolve this matter with Nina,” the company says in the statement.

So, if workers' compensation benefits had been sufficient would Pham have sued THR?

Here's her plea for damages:

a. Physical pain and mental anguish sustained in the past;
b. Physical pain and mental anguish that, in reasonable probability, Nina will sustain in the future;
c. Physical impairment sustained in the past;
d. Physical impairment that, in reasonable probability, Nina will sustain in the future;
e. Loss of enjoyment of life sustained in the past;
f. Loss of enjoyment of life that, in reasonable probability, Nina will sustain in the future;
g. Medical care expenses sustained in the past;
h. Medical care expenses that, in reasonable probability, Nina will sustain in the future;
i. Loss of earning capacity that, in reasonable probability, Nina will sustain in the future;
j. Loss of reputation sustained in the past;
k. Loss of reputation that, in reasonable probability, Nina will sustain in the future;
l. Restitution damages for loss of value associated with her name, reputation and goodwill.

And of course the wild card, exemplary (punitive) damages.

Nope - workers' compensation can't compete with that. I think that answers my question.

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