Emory University Hospital and Texas Health Presbyterian Hospital have now seen multiple patients suffering with the Ebola virus. The doctors were well aware of this deadly virus before they saw their first patient. They knew that patients with Ebola have a very high mortality rate, estimated at 50 percent or higher. They knew that the virus is transmitted by human contact with blood or bodily fluids of an infected patient. They knew that their employees could be infected if they came in contact with the infected patient’s blood or bodily fluids, and they knew that, if infected, their employees could then infect their family members and others with which they came in contact.
Fortunately, Emory has taken precautions based on its knowledge of Ebola. The hospital has isolation rooms for the infected patients that prevent any non-essential contact. Visitors have to look at their loved ones through a window; they are not allowed inside the room. The isolation room is equipped with a negative-pressure air handling system that ensures that the air flows into the room and not out. That air is filtered through a high-efficiency particulate air filter to remove contaminates. Hospital doctors, nurses, and other staff who enter the room are provided personal protective equipment, including disposable Tyvek suits and masks. Hospital equipment in the room is either incinerated or sanitized. Conditions at Texas Health Presbyterian Hospital remain unclear, but at least two workers who helped treat an Ebola-infected patient now have the virus themselves.
If Emory (or Texas Health) were located in California, what civil claims would be available to its employees and their family members who are infected with Ebola as a result of Emory’s negligence? Let’s assume that Emory knew that it was treating patients with Ebola, knew how it is transmitted, knew how to prevent its transmission, but did absolutely nothing to prevent the spread of Ebola from its patients to its employees who were then infected and infected their family members. The infected employees have workers compensation claims or civil tort claims if Emory did not have workers compensation insurance. What right to recovery would the infected family members have? Although this appears to be a clear-cut case of foreseeable negligence, California law provides that the employee’s infected family member does not have a claim against the employer.
This exact fact pattern has come up with respect to a deadly disease that has taken far more lives than Ebola — mesothelioma. Three California appellate courts have looked at the issue in published decisions: Campbell v. Ford Motor Co., 206 Cal. App. 4th 15 (2012), Kesner v. Superior Court of Alameda County, et al., 226 Cal. App. 4th 251 (2014), and Haver v. BNSF Railway Co., 226 Cal. App. 4th 1104 (2014). The Kesner and Haver decisions have recently been depublished after the state Supreme Court granted review to both.
The decision in Campbell is the law of California in the meantime, and that court concluded that an employer owes no duty to the family members of its employees who bring asbestos home with them on their clothes. This is true even if the employer knew it was using asbestos, knew asbestos could cause mesothelioma, knew that asbestos could go home on its employees’ clothes and put their family members at risk of developing mesothelioma, and knew how to prevent putting those family members at risk.
How is it that companies that knowingly expose family members of their employees to a toxin are not liable when those family members are injured from that toxin? After all, the law in California is that “[e]veryone is responsible … for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” Civ. Code Section 1714(a).
The only limit on this civil law, which has been unchanged since 1872, is found in the state Supreme Court’s decision in Rowland v. Christian, 69 Cal. 2d 108 (1968). The Rowland court instructed that limitations or exceptions should be rare: “it is clear that in the absence of 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” (internal citations omitted).
The Campbell court, in analyzing the public policy considerations enumerated in Rowland, determined that public policy considerations weighed against imposing a duty on the negligent employer. There are also foreseeability considerations but, like our Ebola fact pattern, those weighed heavily in favor of imposing liability. The public policy concerns that weighed heavily against finding an employer who negligently exposes its employees’ family members to asbestos are “the extent of the burden to the defendant and the consequences to the community if the court imposes on a particular defendant a duty of care toward the plaintiff.”
The burden on employers of protecting family members of employees from asbestos diseases like mesothelioma is the same as the burden of protecting family members from Ebola — do not expose the employees. Employers have had the duty, and burden, of protecting their employees from occupational hazards for more than a century. If employees are protected from asbestos exposure, then the dust will not be on their clothes when they go home, preventing exposure to the family. Likewise, if hospital employees are protected from Ebola, then they will not be infected and will not place their family members in danger of being infected. The real burden to the defendant described in Campbell is that it would face liability for all of its foreseeable negligence.
The consequences to the community for not discouraging the negligent spread of diseases like Ebola are substantial. Economic responsibility for negligence in civil law makes negligence expenses and thus less likely to occur. The state Supreme Court made that clear in a recent decision applying Rowland: “The overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 781 (2011). Civil law has a long history of getting dangerous products off of the market. Remember lawn darts? The Ford pinto? Asbestos? The government did not ban these products; they were taken off the market because civil liability made them unprofitable.
Another substantial consequence to the community is that the persons harmed by the negligent actions of employers have to pay the price. They pay with their pain, suffering, mental anguish, medical treatments, and in the worst cases, with their lives. If the victims are so fortunate as to have insurance, then they will have help with their medical treatment; if not, then they might not be treated at all.
Emory University Hospital has a much better public policy argument in this analysis than a company that uses a carcinogen like asbestos in its industrial process or a pesticide company that makes hazardous toxins for sale as a product. Emory didn’t make Ebola to sell to others or use Ebola to make other profitable products; it treated people who arrived on its doorstep with this terrible condition. While we don’t want Emory to negligently spread Ebola beyond the patient it is treating, we also don’t want Emory to make the economic decision to not treat these patients because of potential liability.
For companies that make and handle hazardous substances, public policy concerns weigh heavily in favor of holding those companies liable for people harmed by their negligence. It is the public that is at risk for injury from the negligent handling of toxic substances. Civil law is a very important tool in the prevention of harm to individuals by making negligence not economically viable. It also allows the injured victims recover for their treatment, pain and suffering. The Campbell decision takes this tool away.