Ebola Case can be Heard by Division; Injunction Dissolved
A Texas Court of Appeals has reversed a trial court’s order granting a temporary injunction, which will now permit the Division of Workers’ Compensation to decide whether a nurse who contracted Ebola from work was a co-employee of a hospital as well as the hospital system, the parent company of the hospital. If the hospital system and the hospital are found to be co-employers, the nurse’s suit against the parent company will be barred by the exclusive remedy doctrine.
In Texas Health Resources et al. v. Pham, No. 05-15-01283-CV (August 3, 2016), Pham was working in the Fall of 2014 as a nurse in the intensive care unit at Texas Health Presbyterian Hospital Dallas (Presbyterian), a hospital in the Texas Health Resources hospital system. On September 25, 2014, a patient named Thomas Duncan sought treatment at Presbyterian’s emergency room. He returned three days later, and he was formally admitted and transferred to Presbyterian’s ICU the next day.
That same day, Pham was told that Thomas would be her patient and that he was suspected to have the Ebola virus, which causes a hemorrhagic disease known for its very high mortality rate. The next day, test results confirmed that Thomas had Ebola. Pham cared for him over the next several days. Thomas died a week later. Pham began to run a fever on October10. She sought treatment at Presbyterian and late the next day was told that she tested positive for Ebola. She was eventually transferred to the National Institutes of Health in Bethesda, Maryland. She survived the virus and was discharged.
Presbyterian’s workers’ compensation carrier initiated TIBs. Pham sued THR alleging that THR’s (i) deficient policies, (ii) failure to train, and (iii) failure to supply adequate protective equipment caused her injuries. She also alleged that THR violated her privacy in its efforts to mitigate the negative publicity from its hospital’s handling of the Ebola crisis. She asserted claims for negligence, negligent undertaking, premises liability, invasion of privacy, fraud, securing the execution of a document by deception, and gross negligence.
THR filed a plea to the jurisdiction, request for abatement, and original answer. THR argued that Pham’s pleading alleged facts that raised a question as to whether she was a THR employee for purposes of Texas’s workers’ compensation statute. This question is important because Pham could be subject to the workers compensation statute’s exclusive remedy provisions if THR was her employer. See TEX. LAB. CODE § 408.001. THR further argued that the employee status issue was within the Division of Workers’ Compensation’s exclusive jurisdiction, and thus the trial court lacked subject matter jurisdiction over the issue.
The trial court denied the plea to the jurisdiction and refused to abate the proceedings. The hospital system appealed that denial. The court of appeals reversed the trial court’s order and dissolved the injunction. The case was decided on the narrow question of whether Pham had demonstrated that she was entitled to an injunction – in other words, that she was likely to prevail on her various causes of action. The court of appeals held that Pham’s evidence offered to support the issuance of the injunction was defective with respect to each cause of action she alleged.
We will assume without deciding that Pham presented some evidence that THR breached its duty of care and acted with gross negligence regarding its policies and procedures, its training of nurses, and the personal protective equipment it provided to nurses. Instead, the question is whether she presented any evidence that, more likely than not, she would not have contracted Ebola had THR acted without negligence or gross negligence. She did not, because (i) her affidavit does not address cause in fact and (ii) the Fisher notes (a) do not clearly assign causation to THR’s conduct and (b) are not expert testimony of causation, which is required on the facts of this case.
Pham’s affidavit presents no evidence of cause in fact. 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.
The court reached a similar conclusion with regard to Pham’s premises liability claim. The court also held that Pham’s invasion of privacy and common law fraud claims were supported by legally insufficient evidence. Finally, the court held that Pham’s cause of action alleging that the hospital system secured the execution of a document by deception was improper because there is no such recognized civil cause of action in Texas.
The court did not reach the carrier’s argument the Division must decide the compensability issue before Pham’s personal injury lawsuit can proceed. The hospital system had argued that the trial court lacks jurisdiction to interfere with the compensability determination by the Division until the agency’s dispute resolution proceedings have concluded. Thus, the hospital system had argued that the trial court should abate the proceedings until the Division had made its own determination of co-employer status.
FOLIO
