Ebola nurse’s injunction against THR reversed because expert testimony required establish causation to support temporary injunction

Originally published by John Guild.

Most people will know the origin story of this appeal. In 2014, Nina Pham was working at a nurse at Texas Health Presbyterian Hospital Dallas (“Presbyterian”), a hospital in the Texas Health Resources (“THR”) hospital system. She was tasked with caring from Thomas Duncan, who was suspected of and ultimately diagnosed with Ebola. Pham cared for Duncan for several days. After treating Duncan, Pham was diagnosed with Ebola. She and her adorable dog became well known the world over, but Pham claimed that THR was negligent in its policies, allowing her to contract Ebola.

In Texas Health Resources, et al. v. Pham, (August 3, 2016), the Dallas Court of Appeals considered an interlocutory appeal of a temporary injunction prohibiting THR from moving forward in a parallel administrative proceeding in the Texas Department of Insurance to determine if Ms. Pham, was an employee of THR for purposes of the workers’ compensation statute. If she was an employee of THR, then workers’ compensation would be her exclusive remedy. The trial court issued a temporary injunction barring THR from proceeding before the Texas Department of Insurance because a decision in favor of THR would deprive the trial court of jurisdiction over Ms. Pham’s claims.

The Dallas Court of Appeals reversed the temporary injunction, focuses solely on the issue of Ms. Pham’s probable right to recovery. Ms. Pham had argued that expert testimony establishing that she contracted Ebola as a result of THR’s negligence was unnecessary at the temporary injunction stage, pointing to evidence of inadequate training and procedures relating to the treatment of Ebola. She also pointed to statements by an insurance adjuster suggesting that Ms. Pham contracted Ebola due to inadequate policies and procedures. But the Court of Appeals was not persuaded. It noted that evidence of a probable right of recovery must be evidence that “under applicable rules of law, establishes a probable right of recovery.” It held that under the circumstances presented, the “applicable rules of law” would require expert testimony establishing causation, a requirement that was not excused at the temporary injunction stage. Without expert testimony of causation, Ms. Pham could not establish a probable right of recovery necessary to support a temporary injunction, allowing the Court of Appeals to avoid deciding whether a trial court can enjoin a parallel administrative proceeding.

Texas Health Resources, et al. v. Pham, (August 3, 2016)

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