A court case featured in Wednesday morning's CompNewsNetwork Report may eventually wind its way into the greater debate regarding Opt Out that is raging in this country. A Dallas nurse who contracted Ebola from a patient has filed a negligence and breach of privacy suit against her employer, Texas Health Resources over the incident. THR is the parent company of Texas Health Presbyterian Hospital in Dallas. Her employer's response in court contends that she cannot sue her employer for negligence and breach of privacy because her claims fall under the workers’ compensation system.

Texas Health Resources has asked for dismissal with prejudice or referral to the Texas Department of Insurance’s Division of Workers’ Compensation. It believes the court has no jurisdiction over the case, and that the nurses “exclusive remedy” is under state workers’ compensation laws. This of course is because the exposure to Ebola happened “in the course and scope of employment.”

And, also because this employer did not opt out of workers' comp as Texas law allows.

Clearly the hospital plans to stick closely to the requirements and protections of the workers' comp system, saying in their brief, “There is no question defendant is a subscriber to workers compensation coverage. To that extent, whether or not plaintiff is an employee of defendant for purposes of the Texas Workers’ Compensation Act and subject to the exclusive remedies of the Act is determined by the Division.”

Either way this could be a significant case. If the plaintiff prevails, it will be another ground shattering step towards the erosion of exclusive remedy. If the employer prevails, it will be an outstanding example of why workers' comp was created in the first place, and why opting out of such a system includes significant risks.

Texas has a unique opt out system, in that employers can choose to offer alternative protections, or go “completely naked”, providing no coverage whatsoever. It is estimated that as many as 1/2 a million workers' in Texas are exposed in such a manner. Oklahoma opt out legislation does require alternate coverage, although it is being challenged in court as being solely controlled by the employer. The legislation considered this year in Tennessee varies even more. If this nurse had become ill under that proposed program the hospital could have stopped treating her when it hit the medical cap and just let her die. Considering the specialty care involved with Ebola I figure that would be just 4 or 5 days after she was diagnosed.

Imagine the exposure for THR if they were non-subscribers to workers' compensation in Texas. This nurse was not their only case of infection. They had two employees infected, and both had to be flown to highly specialized centers to receive life saving care. The potential negligence and privacy issues would be enormous. Texas Health Presbyterian Hospital was roundly criticized for its handling of the initial Ebola case brought to its door (they deny any wrongdoing). Additionally, this particular nurse claims her identity and video of her in bed were released without her knowledge or approval. The liability costs to a non-subscribing entity over this could have been astronomical.

And there is nothing like a multi-bazillion dollar lawsuit to make employers think twice about the comforts of exclusive remedy.

Even though Ebola as a direct threat here in the United States has slipped off the main pages of the newspapers (or iPad apps), the frightening virus now spreads to the halls of justice. Who it affects now and how it spreads will be a closely watched event. If protections intended through exclusive remedy hold, employers may find themselves second guessing their willingness to opt out of comp, and into a brave and uncertain world of new liability.

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