Whether or not you can sue someone if you get coronavirus remains an open question. History tells us that lawsuits have been successfully filed relating to the effects of other outbreaks and pandemics. These past lawsuits concern viruses like Ebola, H1N1 (swine flu), and HIV/AIDS, and can serve as an indication of whether you can sue a person or entity if you contract the coronavirus.
HIV, the human immunodeficiency virus, causes AIDS and interferes with the body’s ability to fight infections. The ability to sue someone for transmitting the HIV virus has been addressed both in civil and criminal courts.
Several courts have ruled that a person can sue someone who passes on the HIV/Aids virus. For example, the California Supreme Court, in John B. v. Superior Court, ruled that suits regarding the negligent transmission of sexual diseases, such as the HIV/AIDS virus, can proceed based on constructive knowledge. The court stated:
Imposing liability for the transmission of HIV where the actor knows or has reason to know he or she is HIV positive is consistent with the general principle of California law that “ ‘[a]ll persons are required to use ordinary care to prevent others being injured as the result of their conduct.’ ” (Rowland v. Christian, supra, 69 Cal.2d at p. 112.) HN8 “Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of a statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy.”
Indeed, some states have criminalized the transmission of HIV/AIDS. The state of the law is covered extensively by the Centers for Disease Control and Prevention, here.
Ebola is a virus that causes severe bleeding and organ failure. The Ebola virus can be spread through contact with bodily fluids. But is there a cause of action to sue another for contracting Ebola virus?
The Supreme Court of Texas, in a February 2020 opinion, Coming Attractions Bridal and Formal, Inc. v. Texas Health Resources, addressed exposure to Ebola in a claim brought under the Texas Medical Liability Act.
In 2014, a Dallas hospital cared for a patient with Ebola. A nurse who cared for the patient later visited a bridal shop in Ohio. When the nurse returned to Dallas, the nurse became ill and was diagnosed with Ebola. Ohio health authorities learned that the nurse had visited the bridal shop and required the bridal shop to close to prevent the spread of the virus. The shop was reopened briefly, but eventually closed permanently when its business did not recover. The shop owner sued the Dallas hospital for failure to prevent transmission of the Ebola virus to the nurse and alleging that the hospital’s negligence caused the shop to close due to health concerns and adverse publicity because of the virus. Regarding negligence, the bridal shop alleged that the hospital was negligent by failing to:
- recognize the danger of the Ebola virus coming to its hospitals;
- develop and implement policies and procedures on how to respond to the presence of the Ebola virus in the patient population;
- ensure that all health care providers were trained on policies and procedures on how to recognize, appreciate, contain and treat the Ebola virus in the patient population;
- train nurses on proper protection from Ebola;
- ensure that the hospital had appropriate personal protective equipment;
- notify the appropriate authorities and employ qualified people to manage Ebola patients;
- instruct and warn its nurses about the dangers of travel and interacting with the public following potential exposure to the Ebola virus; and
- protect the public from foreseeable harm when it unnecessarily exposed its nurses to the Ebola virus in an unsafe manner and failed to prevent or warn the exposed nurses from interacting with the public.
The hospital moved to dismiss the claims against it when no expert report was filed. The trial court denied the motion. The court of appeals reversed, reasoning that a corporation alleging a health care liability claim falls within the statute’s definition of “claimant,” and the allegations in this case state a health care claim against the hospital. The Texas Supreme Court agreed and affirmed the dismissal.
In this case, dismissal of the claim stemmed from failure to comply with expert requirements, not absence of the ability to state a claim for negligence or under the Texas Act regarding the contraction of the Ebola virus.
In Texas Health Resources et al. v. Pham, a nurse working in the intensive care unit, sued the hospital after contracting Ebola from a patient who eventually died of the disease. The nurse surviving Ebola and sued the hospital alleging that the hospital’s (1) deficient policies, (2) failure to train, and (3) failure to supply adequate protective equipment caused her to get Ebola. The nurse sued under theories of negligence, premises liability, and invasion of privacy. A temporary injunction was granted in her favor against the hospital, which the Texas appeals court reversed.
The Texas appeals court held that the nurse did not offer sufficient evidence of a probable right of recovery. The nurse did not present any evidence that, more likely than not, she would not have contracted Ebola had the hospital acted without negligence or gross negligence. With regard to the premises liability claim, the court stated:
She was required to present evidence that the allegedly dangerous premises were a cause in fact of her injuries. Whether Pham would have been infected had the premises conditions been different is not within the common knowledge of ordinary lay people. Accordingly, Pham had to present expert testimony of causation. She did not do so.
Although the injunction was reversed, the case was remanded for further proceedings on the substantive claims.
H1N1 Swine Flu Virus
The H1N1 virus is a respiratory infection caused by an influenza strain that started in pigs.
In Ebaseh Onofa v. McAllen Hospitals, a 2015 Texas Court of Appeals case, a husband challenged a summary judgment in favor of a hospital related to the H1N1 virus. The husband alleged that his wife returned from her shift at the hospital not feeling well. The hospital had confirmed cases of H1N1 virus in the hospital, but not in her unit. Her symptoms worsened. She was admitted to the emergency room a few days later. She died two days later as the result of the H1N1 virus.
The husband sued the hospital for wrongful death, alleging that the hospital was grossly negligent because they new that his wife was caring for patients with confirmed or suspected H1N1 virus, but did not give his wife an N95 mask to wear during her shift.
The hospital was granted summary judgment, and the appellate court affirmed, stating:
Excluding Dr. Hull’s amended affidavit and reviewing the remaining evidence in the light most favorable to Benjamin, we conclude that Benjamin produced nothing more than speculation on the element of causation. Without any evidence that there were patients positive for in the PICU during the time that Onofa worked there, the evidence Benjamin brought forth does “no more than create a mere surmise or suspicion” that Onofa became infected with in the PICU as opposed to elsewhere in the community.
Therefore, although it was possible that the husband could sue for his wife’s contraction of the virus, he had to present some evidence of causation to survive summary judgment.
In a 2012 New York Supreme Court case, Casabianca v. Mount Sinai Med. Ctr., Inc., a medical malpractice action and wrongful death action was brought when Casabianca did not receive a vaccine for the H1N1 virus. Casabianca went to the hospital for a small bowel transplant, contracted the H1N1 virus, was not administered the H1N1 immunization, and died.
Defendant hospital moved to dismiss the action under the Public Readiness and Emergency Preparedness Act (“PREP”).
That law provides immunity from tort liability for manufacturers, distributors and administers of the vaccine during a public health emergency and further provides that the sole remedy resulting from injury would be under the Countermeasures Injury Compensation Program (“CICP). Also, PREP preempts State law, which means that any action associated with injury from a vaccine must be brought in Federal Court. See, 42 USC §247d-6d(b)(8).
The defendants here assert that the Hospital and the named doctors are covered under the PREP Act, meaning that this action, a tort action brought against them in State court, must be dismissed. However, the opposition argues that PREP is irrelevant to this action because, to be applicable, the vaccine must have been administered. It is undisputed here that the vaccine was never administered. That, according to the plaintiff as previously stated, was the problem.
Therefore, the issue before this Court is how to interpret PREP.
Should it be given the broad interpretation urged by the defense so as to adopt the “statute’s sweeping immunity” (Reply, p 4, ¶2), or rather should it be given the limited construct urged by the plaintiff?
The New York Supreme Court determined that a claim could be made that Casabianca’s treating physicians, by deciding not to provide him with the vaccine, committed malpractice, which was a cause of his death. The cause of action was not covered by PREP, and so the case was permitted to proceed.
What Does History Say About Whether You Can Sue If You Get Coronavirus?
History says that whether you can sue for getting coronavirus depends on the substance of your action, whether your action is preempted by another law, and whether the element of causation exists. For now, the impact of coronavirus is playing out in courtrooms across the country by grinding the typical way of doing business to a halt. Only time will tell what causes of action and what factual scenarios result in the ability to sue for contracting coronavirus.