For those of us that are married to nurses, this week’s announcement that two of our own tested positive for Ebola was alarming. Our loved ones stand at the forefront of the fight against a growing epidemic and reports indicate that many hospitals may be unequipped to protect them.
While specific details about how the Texas nurses contracted the virus have not been released, Dr. Tom Frieden, director of the CDC, blamed a “breach of protocol” at the Dallas based hospital for the first cases of person-to-person transmission of the virus in the U.S.
The results of an online survey recently commissioned by National Nurses United reveal that many such alleged Ebola “protocols” either do not exist or are not being properly communicated to nurses. Out of over 1,900 nurses in 46 states who participated in the survey, a staggering 76 percent said their hospital had not communicated to them an official policy regarding the admission of potential patients with Ebola. Even more disturbing, 85 percent of those nurses surveyed said their hospital had not provided training sessions on Ebola protocols in which they could interact and ask questions.
The results of this survey confirm that many hospitals are sending their nurses into the fight against Ebola without the proper training. This lack of training increases the risks to nurses caring for Ebola patients.
While this week’s news has focused on the spread of the virus to nurses, little has been said about the legal remedies available to the nurses who contract this disease as a result of their hospitals’ failures.
In even the best-case scenario, nurses that contract Ebola may be left severely ill and unable to work for long periods of time. In the worst-case scenario, the virus is fatal. In either case, the children and spouses of nurses that contract Ebola may be left with overwhelming emotional and financial hardships. What responsibility do hospitals have to care for health care workers (and their families) that they put at risk?
Understanding The Limitations Of Workers’ Compensation For Nurses
Unfortunately, in most states, workers’ compensation is a nurse’s only legal remedy against an employing hospital that fails to properly protect him/her from Ebola. While there are benefits to workers’ compensation, it is important for nurses to understand that the system will not fully compensate them for their loss.
Workers’ compensation systems vary from state to state. However, in general, workers’ compensation is a state-regulated “no-fault” insurance program. The term “no-fault” means that a qualifying injured employee can recover workers’ compensation benefits without having to prove that the negligence of their employer caused their injuries. Under the “no fault” scheme, an employee can recover such benefits even if their injuries were caused solely by their own negligence.
But there is a price to pay for this “no fault” protection. In exchange for such protection, the benefits owed by employers to employees are significantly less than might otherwise be owed in a traditional tort claim. Generally, most workers’ compensation systems provide qualifying employees with only medical, some wage, and limited death benefits. There are typically strict administrative requirements that must be complied with in order to maximize these benefits. There are often a series of hurdles in place that restrict the total amount and duration of such benefits. Importantly, workers’ compensation does not provide benefits for legitimate tort damages such as physical pain and suffering, mental anguish, and loss of enjoyment of life.
Hospitals Use Workers’ Compensation To Limit Benefits Owed To Injured Nurses
In most states, the workers’ compensation benefits mandated by law are the exclusive remedy of an injured employee against an employer. In other words, even if an accident was caused solely by the negligence of an employer, an injured employee is stuck with the limited benefits and increased bureaucracy of the workers’ compensation system. The injured worker (or their family) cannot sue their employer to recover the total damages caused by the employer’s negligence.
Hospitals around the country have attempted to use the exclusivity of the workers’ compensation system to limit the benefits owed to nurses and other health care professionals who are injured while performing their duties at a hospital.
In Texas, a group of nurses filed suit against their hospital after repeated complaints of sexual harassment by a particular doctor went unaddressed. The nurses alleged that the hospital failed to provide them with a safe work environment and negligently hired and credentialed the offending doctor despite their repeated complaints. The hospital sought to have the tort case dismissed because it claimed that workers’ compensation was the nurses’ only remedy under the law. Ultimately, the Texas Supreme Court sided with the hospital and the nurses were precluded from pursuing tort damages. Walls Regional Hosp. v. Bomar, 9 S.W.3d 805 (Tex. 1999).
In Louisiana, an employee and his wife filed suit against his employing hospital after he was exposed to HIV while trying to subdue an unruly patient at the request of his supervisor. During the exchange, the patient bled on the hospital employee. Unfortunately, prior to requesting the assistance of the employee, the hospital supervisor did not inform him that the patient had AIDS. As a result, the employee did not don gloves or other protective garments prior to attempting to restrain the patient and was exposed to HIV. After suit was filed, the hospital sought to have the tort case dismissed because it claimed that workers’ compensation was the employee’s only remedy under the law. The Louisiana Fourth Circuit Court of Appeal eventually sided with the hospital and ruled that the employee’s only remedy for HIV exposure was workers’ compensation. Vallery v. Southern Baptist Hosp., 630 So.2d 861 (La. App. 4th Cir. 1993).
Limited Exceptions To The Exclusivity Of Workers’ Compensation For Nurses
Importantly, some states recognize limited exceptions to the general rule regarding the exclusivity of workers’ compensation for employees. For example, in Louisiana an employee may sue his employer in tort if he/she can prove that their injury was caused by an “intentional act” of their employer.
To satisfy this burden of proving an “intentional act,” the injured employee must prove that the employer “either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” Bazley v. Tortorich, 397 So.2d 475, 482 (La. 1981).
This is typically a difficult burden to overcome. In Louisiana, mere knowledge and appreciation of a risk does not constitute intent. Reckless or wanton conduct by an employer does not typically constitute intentional wrongdoing. Gross negligence, disregard of safety regulations, or the failure to use proper safety equipment, does not even constitute intentional wrongdoing. Williams v. Gervais F. Favrot Company, Inc., 573 So.2d 533 (La. App. 4th Cir.), writ denied 576 So.2d 49 (La. 1991).
Given the differences in workers’ compensation laws from state to state, and the possibility of limited exceptions to general rules, it is always advisable for nurses to consult an attorney after being injured at a hospital. Typically, it is in the best interest of the hospital to have a nurse’s claim for damages fall under workers’ compensation. However, it may not be in the best interest of the injured nurse or her family. Consultation with an attorney can help nurses better understand what is in their best interest.
Nurses stand at the forefront of the fight against the growing Ebola epidemic. The news this week reminds us all how dangerous their jobs can be. Hospitals owe their nurses the implementation of policies, practices, and procedures that reduce the risks associated with treating Ebola patients. When hospitals fail to satisfy that duty, and nurses contract Ebola, those nurses deserve to be fully compensated for their injuries. Unfortunately, workers’ compensations benefits may be all they’re entitled to by law.