INTRODUCTION
I. HISTORICAL ORIGINS
A. Emergence of the American Medical Association
B. Relationship Between Law and Ethics
C. Reluctance to Treat
II. IN THE ABSENCE OF AN "EMERGENCY"
A. Americans with Disabilities Act
B. Direct Threat
C. Specialists
D. State Laws
E. Emergency Medical Treatment and Active Labor Act
III. EMERGENCY LEGAL FRAMEWORK
A. Shortcomings in Existing State Emergency Plans
B. Model State Emergency Health Powers Act
C. Proposals for Procedural Safeguards
CONCLUSION
INTRODUCTION
Over the course of the twentieth century, the medical community
"appeared to be winning the battle against communicable
diseases" with antibiotics and vaccines. (1) Yet, in the last few
decades, new infectious diseases and conditions such as Human
Immunodeficiency Virus (HIV), Acquired Immunodeficiency Syndrome (AIDS),
Severe Acute Respiratory Syndrome (SARS), Ebola, and avian influenza (most notably virus H5N1) have created grave new threats. Although
HIV/AIDS is not particularly contagious if appropriate precautions are
taken, (2) avian influenza, SARS, and Ebola are believed to be highly
contagious, fatal, and sometimes without mechanisms to prevent
transmission. (3)
With the threat of an epidemic looming, the question of
physicians' legal duties during an epidemic of a highly infectious
disease becomes critical. While there is a rich body of literature in
medical journals concerning physicians' ethical obligations in
epidemics and extensive case law regarding the question of
physicians' legal duties to HIV/AIDS patients under the Americans
with Disabilities Act of 1990 (ADA), few scholars or policymakers have
discussed the appropriate legal frameworks for addressing
physicians' duties to treat highly infectious diseases such as
avian influenza, Ebola, and SARS. That this issue has received minimal
attention from legal scholars and policymakers is troublesome since
physicians will probably be needed to help control an epidemic. The
current failure to address the issue of whether and to what extent
physicians have a duty to treat people with fatal, highly infectious
diseases could have devastating consequences during an epidemic.
This Note focuses on the impact of an epidemic on physicians
because, as compared with other healthcare workers such as nurses,
physicians are the most publicly visible and tend to have the most
professional autonomy. Moreover, physicians as a group have tremendous
influence over the development of local, state, and federal healthcare
policy. However, a focus on physicians in no way suggests that they are
the only group of healthcare professionals with an important stake in
policies regarding duties to treat during an epidemic. The concerns of
other healthcare professionals tend to be coextensive with the concerns
of physicians. The healthcare industry employs millions of Americans,
many of whom will be affected by the creation of legal frameworks
compelling delivery of care. (4) Greater clarity regarding
physicians' responsibilities during an epidemic will help inform a
discussion about the interests of other healthcare professionals.
By addressing the structural limitations of existing legal
frameworks pertaining to physicians' duties and by discussing ways
in which states can create emergency legal frameworks that compel
physicians to provide treatment when appropriate, this Note begins to
fill a void in the literature regarding physicians' obligations
during an epidemic. Part I considers the willingness of physicians to
treat during an epidemic by examining physicians' past attitudes
towards epidemics, and the role the American Medical Association (AMA)
has played in shaping the regulation of the medical profession.
Part II analyzes the inapplicability of existing statutory
frameworks in an epidemic context. In particular, this Part examines why
the ADA and similar state laws, which prohibit physicians from refusing
treatment to patients with HIV/AIDS because they are seropositive for
HIV, have limited applicability for determining whether physicians are
required to treat patients with highly infectious diseases. This Part
also demonstrates that while hospitals have a legal obligation to treat
people with infectious diseases and doctors have contractual obligations
to hospitals, the care available from this set of relationships is
unlikely to be sufficient during an epidemic.
Part III discusses the role that states and governors will play in
managing an epidemic given current legislation and directives from the
Department of Health and Human Services (HHS). Moreover, this Part
addresses the contributions of the drafters of the Model State Emergency
Heath Powers Act (MSEHPA) in proposing a system that recognizes the need
for governors to be able to declare a state of emergency during an
epidemic and to require physicians to provide care as a condition of
their professional licensure. Finally, Part III argues that the primary
shortcoming of the MSEHPA, as it pertains to physicians, is that it
fails to recognize physicians' property interests in their licenses
and to provide them with the process they are constitutionally due.
This Note acknowledges that the degree of risk physicians should be
required to confront during an epidemic as a condition of their
licensure is hardly clear. Of course, uncertainty regarding what type of
epidemic might transpire and how many people would be implicated greatly
contributes to the challenge of establishing what role physicians should
play. As evidenced by the muddle of laws that tangentially address
physicians' obligations to treat people with highly infectious
diseases, it is impossible to create a bright-line test for determining
what exactly physicians should and should not be required to do during
an epidemic. Therefore, during an epidemic, it would be appropriate to
give the governor the opportunity to declare a state of emergency and to
allow her, after great consideration, to assess whether and to what
extent physicians should be required to provide treatment to patients
with highly infectious diseases. Yet, this power of the governor should
not be unbridled. Only by relying on traditional due process analysis
can we create a system in which physicians provide appropriate care to
patients during an epidemic.
I. HISTORICAL ORIGINS
The current lack of clarity regarding the legal standard that
governs physicians' duties during an epidemic is in part a
reflection of the persistent divisions among physicians concerning
appropriate professional conduct. The question of whether and to what
extent physicians have an ethical duty to treat patients during an
epidemic has a long pedigree. Scholarship on the history of medical
ethics reveals that the medical community has never come to a consensus
on the nature and scope of its responsibilities during an epidemic. (5)
Physicians' interpretations of their professional responsibilities
are relevant for understanding their legal duties because the medical
profession in the United States exerts tremendous influence over the
regulation of the profession.
A. Emergence of the American Medical Association
Since the mid-1980s, medical historians have accepted the
Zuger-Miles hypothesis that prior to the twentieth century there was no
"strong or consistent" tradition of physicians rendering care
in epidemics due to a sense of professional responsibility. (6)
According to the Zuger-Miles hypothesis, physicians have tended to act
according to their own individual predilections. For example, medieval
doctors fled Venice in the fourteenth and fifteenth centuries to avoid
becoming infected with the black plague, and physicians in the
seventeenth century left London to escape the bubonic plague. (7) In
Philadelphia, during the yellow fever outbreak of 1793, some American
physicians' responded as their European predecessors had. (8) For
example, three of the most famous doctors in Philadelphia went to the
countryside to try to avoid contact with yellow fever. (9)
Yet, not all physicians fled disease-ridden cities. (10) During the
yellow fever outbreak in Philadelphia, most physicians probably stayed
in the city. (11) Some stayed to tend to the ill out of a feeling of
religious obligation. (12) Others, dubbed "plague doctors,"
provided care in exchange for monetary incentives. (13) Another group of
physicians was motivated by a sense of contractual duty to their
patients. (14) Since writers from the medieval period to the nineteenth
century derided physicians who fled epidemics for their "avarice and cowardice," (15) perhaps some physicians stayed to avoid
censure by the broader community.
In response to the multitude of physicians' reactions during
epidemics, the AMA, founded in 1847, sought to codify expectations for
physicians' behavior. The AMA's first Code of Ethics was
groundbreaking in part because it "served formally to enshrine the
potential for professional obligations, distinct from matters of
personal choice, charity, or religion." (16) The Code stated:
"[W]hen pestilence prevails, it is [physicians'] duty to face
the danger, and to continue their labors for the alleviation of the
suffering, even at the jeopardy of their own lives." (17)
The impetus for trying to codify expectations in the Code is highly
contested. Some historians view the Code of Ethics as an example of
"public relations exercises designed to pacify the public and to
gull legislators into supporting orthodox medicine's monopolizing
proclivities." (18) Others view the original Code as articulating a
"radical reformist vision of American medicine" that sought to
protect the public from unorthodox, uneducated practitioners. (19)
In either case, once codified, the AMA's standard became a
touchstone in the debate about professional ethics and has facilitated a
certain conception of professional obligation among physicians and the
public at large. (20) Although only a quarter of physicians are members
of the Association, the AMA's words and actions influence
professional standards within the medical community, (21) especially to
the extent that its words are reinforced by legislative initiatives and
programs developed by the AMA. (22) Drs. Steven J. Huber and Matthew K.
Wynia (23) argue that the Code facilitates a sense of professional
identity that:
separate[s] professional duties from personal choices ... [as well
as a] public expectation of the duty [that] implies reliance on
physicians to perform according to a social contract, for which
physicians as a group are rewarded and, by extension, the breach of
which is anticipated to lead to rescinding of professional
prerogatives granted the group by society. (24)
Evidence of the Code's efficacy can be found during the period
between 1847 and 1957, when the Code clearly articulated a duty to treat
despite personal risk. (25) During this period, records indicate that
physicians provided care in a number of epidemic contexts, including
during the Spanish Flu of 1918 and during times of heightened
tuberculosis outbreaks. (26) Perhaps doctors during this period were
more inclined to provide care than their predecessors because they had
entered the profession with an understanding that they would be expected
to tend to patients even if it posed a threat to their own health.
In 1957, however, the strong language of self-sacrifice in the Code
was perceived to be in tension with the goal of contractual freedom, so
the Code's reference to epidemics was relegated to an interpretive
note. (27) By 1977, this interpretive note was withdrawn as a
"historical anachronism." (28) This withdrawal may have been
in part a reflection of the widespread view that the medical community
was winning the war against communicable diseases. (29)
Amidst the AIDS crisis of the 1980s, the AMA declined to amend the
Code to explicitly require physicians to provide care to patients with
HIV/AIDS. Instead, in 1987, the AMA's Council on Ethical and
Judicial Affairs (CEJA) issued an opinion that said, "A physician
may not ethically refuse to treat a patient whose condition is within
the physician's current realm of competence solely because the
patient is seropositive [for HIV/AIDS]." (30)
Similarly, in the 2002 revisions to the Code, the AMA chose not to
directly address physicians' duties during emergencies, such as the
recent attacks on the World Trade Center and the Pentagon. Instead, the
AMA drafted a Declaration of Professional Responsibility, which listed
as one of its principles that physicians should "[a]pply [their]
knowledge and skills when needed, though doing so may put [them] at
risk." (31) This comment clearly encompasses scenarios in which the
risk to the physician would be low and the benefit to the patient would
be high. Yet, the AMA offers little guidance on how physicians should
weigh their competing responsibilities in a scenario in which the risk
to the physician would be high, as would be the benefit to the patient.
The AMA's level of generality and vagueness is not coincidental. In
the official comments accompanying the Declaration of Professional
Responsibility, the authors note that "[g]reater specificity would
compromise the universal applicability of the Declaration and possibly
divide rather than unite physicians." (32)
The AMA states that the principles articulated in the Declaration
are enforceable only by the signatories within the profession and as
such "differ[] from codes of ethics used in the adjudication of
legal and ethical issues by professional boards and courts of law."
(33) This comment is illustrative of the AMA's struggle to create a
more expansive understanding of ethical duty while also recognizing the
possible legal consequences of such an articulation. The AMA, in its
failure to address specifically when and to what extent physicians
should be required to provide care during an epidemic, has effectively
ceded some of its influence on this matter to the government.
B. Relationship Between Law and Ethics
Physicians' view of their own ethical duty is relevant because
physicians have tremendous autonomy in regulating the behavior of those
in the medical profession. The policy of the Rhode Island Board of
Medical Licensing and Discipline exemplifies physicians' influence
over the laws that govern them: "No single list or source can offer
practicing physicians guidance in every conceivable circumstance.
However, the Board relies upon the American Medical Association's
code of ethics as the legal standard." (34)
A brief discussion of physicians' involvement in the
development of legal standards helps demonstrate the importance of
physicians' conception of their duty to treat during an epidemic.
Generally, physicians' legal influence arises in two contexts: (1)
associations of physicians act in gatekeeping capacities by determining
who can enter and remain in the profession, and (2) courts rely on
customs within the medical profession and the judgments of
practitioners.
Physicians, primarily through the AMA, serve as gatekeepers of the
profession by virtue of their participation in and influence over
medical education and licensure. The AMA controls the accreditation
process for medical schools and the licensure requirements for those who
want to enter the profession. (35) The stated rationale for the
authority vested in the AMA is that it allows the profession to maintain
high standards, which then benefit members of the public as consumers of
medical services. (36) Economists debate whether this cartel-like
behavior has the intended effect of controlling quality rather than
simply driving up healthcare costs. (37) Similarly, the efficacy of the
AMA at exerting complete control over the supply of physicians is
contested. (38) Nonetheless, the active role of physicians as
gatekeepers for the medical profession is widely agreed upon. (39)
Another factor that contributes to physicians' influence over
the legal standards to which they are held is the courts' deference
to professional standards. Just as a lay defendant accused of committing
a tort is judged against the behavior of a hypothetical reasonably
prudent person acting under the same or similar circumstances, a
physician accused of committing malpractice is judged against the
standard of care a reasonable physician with similar specialized
knowledge or skill would provide. (40) While each state's tort laws
governing malpractice differ, the prevailing standards of care in a
physician's medical community are highly influential when
determining whether a physician has committed malpractice. (41) Through
this process, the courts have institutionalized deference to
physicians' communal assessments of their professional
responsibilities.
Finally, physicians' understanding of their own
responsibilities is influential because of the Supreme Court's
reliance on the judgment of medical professional associations,
especially the AMA, when considering some of the thorniest medical
ethics issues. As discussed by physician-lawyer M. Gregg Bloche, the
Supreme Court has cited the AMA's amicus briefs in recent cases
dealing with physician-assisted suicide, Fourth Amendment rights
relating to hospitals' refusals to disclose to the government the
results of patients' drug tests, and the appropriate role of a
physician's judgments when considering abortions and treating the
mentally ill. (42)
As recently as Gonzales v. Oregon, the Supreme Court cited the
AMA's position that "[p]hysician-assisted suicide is
fundamentally incompatible with the physician's role as a
healer" to support its conclusion that providing a prescription to
produce death does not constitute a legitimate medical purpose. (43) In
Stenberg v. Carhart, the AMA's position that an intact dilation and
extraction abortion "not be used unless alternative procedures pose
materially greater risk to the woman" served as one of the focal
points of the Court's analysis. (44) Although the Court's
holding that the Nebraska law regulating intact dilation and extraction
abortions did not have an adequate exception for the life and health of
the mother was not entirely consistent with the AMA's position, the
Court's decision did consider the standards set forth by the AMA.
(45)
This pattern of the Court looking to the AMA for guidance is
noteworthy because it suggests that should issues relating to the
treatment of patients with highly infectious diseases reach the Supreme
Court, the Court is likely to consider the AMA's understanding of
physicians' responsibilities. Unfortunately, as indicated above,
the AMA's guidelines provide only a murky set of standards for how
physicians should view their responsibilities during an epidemic when
both the risk to the physician and the benefit to the patient would be
high.
C. Reluctance to Treat
During an epidemic, physicians undoubtedly would have to make some
difficult decisions about whether to provide care. Many physicians would
have a host of competing responsibilities to their families, their
uninfected patients, their infected patients, and themselves. Moreover,
they probably would feel woefully uninformed about the risks associated
with providing care to infected patients and whether their care would
even be effective. The premise that some physicians would try to avoid
treating patients with highly infectious diseases is based on
physicians' historic responses in epidemics, as discussed above,
(46) and recent studies that indicate that some physicians remain
reluctant to treat patients with certain infectious diseases.
A study conducted in the late 1990s by the American Civil Liberties
Union's AIDS Project found that twenty-three percent of U.S.
medical residents "indicated that they would not care for persons
with AIDS if they had a choice." (47) One might argue that these
results are poor indicia of physicians' behavior during an epidemic
because the physicians in the study may have been influenced by
prejudicial attitudes towards people with HIV/AIDS. However, the ACLU study indicates that fear of becoming infected with AIDS, not prejudice,
was the compelling factor for physicians who wanted to deny treatment.
This fear of infection would probably also influence physicians treating
patients with highly infectious diseases.
A physician might feel even more reluctant to expose herself to a
patient with a highly infectious disease than to a patient with HIV/AIDS
out of fear that she will contract the highly infectious disease and
then pose a risk to the health of her family and her other patients.
HIV/AIDS transmission is primarily limited to one's sexual partners
and is easier to control than the transmission of a highly infectious
disease. Also, the risk of transmitting HIV/AIDS from doctor to patient
is very low. (48)
In contrast, a highly infectious disease like avian flu would put a
doctor's entire family at risk, especially young children and the
elderly. In a Toronto study of physicians working at three academic
hospitals during the SARS outbreak, almost one-third of physicians
worried about transmitting the disease to their families. (49) This
survey also indicated that those with children in their homes felt more
fearful of infecting their families. (50)
Also, contracting a highly infectious disease would jeopardize a
physician's ability to treat her non-infected patients. With
appropriate precautions, a physician with HIV is capable of continuing
to provide treatment to non-infected patients. (51) However, a physician
who contracts avian flu or SARS might be physically incapacitated,
quarantined, or present too great a risk to her patients. Some of these
concerns were articulated by Toronto physicians who provided care to
SARS patients. In a survey, they characterized their "main
concerns" should they become sick with SARS as (1) creating a lack
of medical services for non-SARS patients, (2) loss of income because of
quarantines, and (3) suspenion of medical services--none of which were
concerns that were discussed in the infectious disease literature
regarding HIV. (52)
Despite the AMA's lack of clarity regarding what constitutes
ethical behavior during an epidemic and some physicians' reluctance
to treat people with HIV/AIDS, it is possible that an adequate
proportion of physicians would be willing to provide care voluntarily
during an epidemic. The SARS study found, "[r]emarkably, few
physicians reevaluated their career choice, and most felt it was their
duty to treat ... infectious patients regardless of the personal
risks." (53) In the United States, such an attitude might prevail
during an epidemic. But history suggests that there may well be a
shortage of physicians willing to treat people voluntarily. Therefore,
it is imperative that legislators, public health authorities, and
physicians develop a clear framework for determining physicians'
legal obligations during an epidemic.
II. IN THE ABSENCE OF AN "EMERGENCY"
In the absence of a public health emergency such as an epidemic,
the Americans with Disabilities Act provides the primary framework for
determining whether physicians have a duty to treat patients with a
particular disease. The ADA is arguably "the most significant civil
rights legislation since the enactment of the Civil Rights Act of
1964," (54) because it greatly expanded legal protections for
physically and mentally disabled Americans. (55) The ADA has been
interpreted to require physicians to treat patients infected with a host
of diseases, including HIV/AIDS. (56) However, as this Subpart will
demonstrate, case law and policy rationales relating to doctors'
legal responsibilities under the ADA to treat people with HIV/AIDS would
not apply to patients with highly infectious diseases such as SARS,
Ebola, and avian influenza, despite the fact that these diseases
probably would constitute disabilities under the ADA. (57)
Similarly, since state nondiscrimination laws overwhelmingly mirror
the federal statutory scheme, they do not impose additional requirements
on doctors. The final Subpart argues that while the Emergency Medical
Treatment and Active Labor Act requires hospitals to provide care to
patients with highly infectious diseases, hospitals' contractual
relationships with physicians would not be enough to ensure that an
adequate number of physicians would be available to provide care during
an epidemic.
A. Americans with Disabilities Act
The central provision of the ADA states: "No individual shall
be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who ... operates a place of public accommodation." (58)
The ADA defines a "disability" as "a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual" (59) and defines "public
accommodation" as encompassing the "professional office of a
healthcare provider." (60) For a plaintiff to win a claim under
this section, she must demonstrate that she: (1) has a disability, (2)
was discriminated against because of this disability, (3) was in fact
denied the pertinent goods or services, and (4) the party discriminating
against her was the owner or operator of a public accommodation. (61)
Currently there is no case law concerning the threshold question of
whether a patient with a highly infectious disease has a disability
under the ADA, but courts are likely to find that she does. Federal law
does not list specific health conditions or diseases that constitute a
disability, in part because such a list would be extremely controversial
and inherently outdated in light of the perpetual proliferation of new
medical conditions. (62)
With regard to what constitutes a disability under the ADA, the
Supreme Court has focused on the need for individualized assessments.
(63) Therefore, it is difficult to determine whether having any given
highly infectious disease would constitute a "disability"
under the ADA in part because of the myriad unanswerable questions about
the characteristics of the diseases at issue. On one hand, most highly
infectious diseases like avian flu or SARS would "substantially
limit[] one or more of the major life activities," (64) which
suggests that people infected with these diseases would be covered under
the ADA. Another person might survive the highly infectious disease but
continue to be substantially limited in her major life activities
because of the lingering physical effects of the disease or because of
prejudice towards her as a former carrier. Therefore, she would probably
be protected under the ADA. On the other hand, a person's
affliction with such a disease might be temporally limited because she
would be able to experience a full recovery and hence she would not be
covered under the ADA. (65)
Overall, it seems likely that a highly infectious disease would
affect one's major life activities in a permanent way, thereby
qualifying under the ADA as a disability. However, regardless of the
Court's position on this threshold matter, physicians are unlikely
to be required to provide care to people with highly infectious
diseases. If a patient with a highly infectious disease is deemed not to
be covered under the ADA, then a doctor may refuse to treat him without
worrying about violating antidiscrimination laws. If the ADA is deemed
to cover those patients, as discussed below, physicians nonetheless will
probably be able to deny care to these patients as well.
B. Direct Threat
The fact that a patient has a disease that is defined as a
disability under the ADA does not mean a physician is legally obligated
to treat that patient. A physician can invoke an affirmative defense that allows her to deny treatment because the patient presents a
significant risk to her health:
Nothing in [the ADA] shall require an entity to permit an
individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of such
entity where such individual poses a direct threat to the health or
safety of others. The term "direct threat" means a significant risk
to the health or safety of others that cannot be eliminated by a
modification of policies, practices, or procedures or by the
provision of auxiliary aids or services. (66)
According to the Supreme Court in Bragdon v. Abbott, this section
of the ADA codified the Court's view in School Board of Nassau
County v. Arline regarding "the importance of prohibiting
discrimination against individuals with disabilities while protecting
others from significant health and safety risks, resulting, for
instance, from a contagious disease." (67) The operative word in
this balancing test is "significant." As the Court notes,
"[b]ecause few, if any, activities in life are risk-free, Arline
and the ADA do not ask whether a risk exists, but whether it is
significant." (68)
The determination of what constitutes a significant risk is to be
made on an individual basis using objective medical standards. (69) A
physician's judgment in assessing risk is not entitled to deference
if her views are at odds with the prevailing medical consensus. The
Supreme Court in Bragdon stated that a physician's "belief
that a significant risk existed, even if maintained in good faith, would
not relieve him from liability." (70)
Over the past two decades, the medical and legal communities have
come to accept that if healthcare workers comply with the recommended
precautions, HIV/AIDS does not constitute a significant risk to the
treating physician; therefore, physicians cannot legally refuse
treatment to a patient based solely on her HIV/AIDS status. (71)
However, no such consensus exists with regard to highly infectious
diseases, nor is it likely that such a consensus will form in the near
future.
If a doctor had refused to treat a patient with SARS in 2002, the
standard against which his decision would have been evaluated is whether
he met his "duty to assess the risk of infection based on the
objective, scientific information available to him and others in his
profession." (72) The SARS outbreak in 2002 and 2003 illustrates
the difficulty of ascertaining what constitutes significant risk when
treating a relatively new disease. Although medical experts believe the
SARS outbreak was managed "expeditiously" in terms of the
publishing facts about the outbreaks, physicians had limited objective,
scientific information about the risks of transmission because such
information was mostly unknown. (73) After the SARS outbreak, experts
still were unable to determine whether the healthcare workers who
comprised up to fifty percent of the deaths from SARS in Toronto and
Hong Kong became infected because they did not take appropriate
precautions before the risk of exposure was known or whether they became
infected despite complying with all CDC guidelines. (74)
The SARS outbreak suggests that it is difficult, if not impossible,
to determine whether a new infectious disease constitutes a significant
risk to healthcare providers that cannot be eliminated by modification
of policies, practices or procedures even when the medical community is
acting competently and rapidly. In Bragdon, the Supreme Court recognized
the limitations of CDC guidelines by commenting that "[g]uidelines
do not necessarily contain implicit assumptions conclusive of the [risk
of transmission]." (75) The Court further asserted that even when
the CDC recommended specific precautions for preventing the transmission
of HIV/AIDS, this did not preclude the possibility that there were
additional measures that could have further reduced healthcare
providers' risk of transmission. (76) The lingering uncertainty
regarding the risk associated with exposure to SARS and the Court's
recognition of the limitations of guidelines demonstrates that CDC
guidelines are helpful but not sufficient for evaluating what
constitutes significant risk.
Another aspect of assessing significant risk requires weighing a
physician's ability to help an infected patient against the risk to
the physician. Even physicians and ethicists who unequivocally advance
the position that doctors have an ethical duty to treat patients with
HIV/AIDS recognize that "the duty to treat is not ...
absolute." (77) In response to the SARS outbreak, a group of
physicians at the National Institutes of Health noted that "[i]f
the danger of serious injury or death is too high, such risk could and
should limit that primary duty [to treat] ... [especially for]
infectious agents ... that are not always amenable to therapy and can
even cause death." (78) According to these physicians, the point at
which a significant risk prevails over the duty to treat is "a
matter of judgment and consensus." (79) In an extremely
time-sensitive context in which there is inadequate time for the medical
community to find "medical or other objective evidence" (80)
to facilitate a consensus that the disease presents a significant risk,
a physician might be justified in assuming that the risk outweighs her
duty to provide care if she reasonably believes that the disease is
deadly, highly infectious, and immune to treatment.
Bragdon could be read to support the position that when there is a
dearth of information regarding the potential risk to the healthcare
provider and about the available treatment for the infected patient, the
physician does not have a duty to treat. If "the risk assessment
must be based on medical or other objective evidence," (81) then
inadequate information would mean that the individualized assessment
required by Arline (82) would be impossible, thus absolving the
physician of her duty to treat. Under this interpretation of the
significant risk rationale, courts could find that the direct threat
provision of the ADA enables doctors to refuse to treat patients who
have, or are reasonably believed to have, new highly infectious
diseases. (83)
The Supreme Court's use of significant risk to determine if
there is a legal duty to treat is a method by which the courts have
combated the discrepancy between the perception of risk and the actual
risk. This rationale was articulated by the Court in reference to the
role of the Rehabilitation Act: "Congress acknowledged that
society's accumulated myths and fears about disability and disease
are as handicapping as are the physical limitations that flow from
actual impairment. Few aspects of a handicap give rise to the same level
of public fear and misapprehension as contagiousness." (84)
Although doctors' perception of their risk of contracting HIV/AIDS
from patients is hard to quantify, (85) anecdotal evidence suggests
physicians' perception of risk was far in excess of the actual
risk. (86) Consequently, creating a legal duty was seen as a way to
remedy the disparity. With other highly infectious and frequently fatal
diseases, there is no reason to believe the perception of risk would be
higher than the actual risk. (87)
In conclusion, should a highly infectious disease present itself in
the United States, it is likely that physicians would be able to deny
care to patients with the disease due to the absence of sufficient
objective, scientific information regarding the risks of transmission. A
physician might reasonably believe that a significant, but unknown, risk
outweighs her ethical and legal responsibilities under the ADA. Yet, as
discussed in Part III, the absence of a duty to treat under the ADA does
not mean that doctors would be completely absolved of a legal duty to
treat patients during an epidemic.
C. Specialists
Another method by which physicians could avoid treating people with
new highly infectious diseases would be through referrals. If a doctor
believes that she lacks the expertise to deal with a patient's
condition, then she has the right to refer the patient to a specialist.
(88) The legislative history of the ADA supports giving physicians the
discretion to make referrals "if the disability itself creates
specialized complications for the patient's health which the
[referring] physician lacks the experience or knowledge to
address." (89) Confronted with a new, highly infectious disease, a
physician's behavior would not be inherently discriminatory and,
therefore, not be in violation of the ADA if she denied treatment and
instead referred the patient to a colleague who was better equipped to
provide care.
With diseases like SARS, avian influenza, and Ebola,
community-based general practitioners would probably be the first
physicians to encounter the infected patients. (90) At least initially,
general practitioners could deny treatment without violating the ADA if
they were to assert a lack of expertise. Even the distribution of
treatment guidelines by federal and state public health entities would
not automatically invalidate a physician's claim that she lacks
expertise. (91)
However, physicians' ability to refer patients with a specific
disease does not give them unbridled discretion. In Lesley v. Chie, a
pregnant woman with asymptomatic HIV believed that her doctor was in
violation of the ADA when he referred her to nearby Worcester Memorial
Hospital. (92) The standard for evaluating discriminatory behavior in
this context was that "a patient may challenge her doctor's
decision to refer her elsewhere by showing the decision to be devoid of
any reasonable medical support.... [However, a] showing of medical
unreasonableness must be framed within some larger theory of disability
discrimination." (93) Moreover, according to the First Circuit,
"mere disagreement with prevailing medical opinion" regarding
the level of expertise needed to treat a specific condition does not
lead to an inference of discrimination. (94) Thus, the court held that
the doctor's medical judgment was reasonable insofar as he believed
that Worcester Memorial Hospital had expertise that he lacked in the
administration of AZT during childbirth, a procedure that greatly
decreased the chances of HIV being transmitted from mother to child
during delivery. (95)
The test for reviewing a physician's decision to refer a
patient is distinct from the direct threat test because the courts will
defer to the judgment of the physician if she chooses to refer her
patient to a specialist. (96) In order to be valid, the referral need
not result in the patient actually receiving the necessary care.
Consquently, if a physician were to refer a patient with avian flu to a
specialist, such as an infectious disease specialist, and that
specialist could not treat additional patients because her schedule was
full, then the referred patient would be unlikely to receive care unless
she were able to find a physician willing to treat her. This doctrine,
which is lenient in its allowance of referrals, provides another method
by which physicians could avoid treating people with new highly
infectious diseases.
D. State Laws
Thus far, the analysis has focused on the absence of a federally
based duty for physicians to provide care during an epidemic. Another
potential source of duty could be state laws. However, states have
generally declined to provide increased protection to people with highly
infectious diseases either by significantly amending their state
disability laws or by allowing patients to recover under a theory of
abandonment liability.
Although some states have defined "disability" more
broadly than the ADA, no states have changed the scope of the ADA's
direct threat exception. Many of the states that have sought to be more
inclusive than the ADA have focused on either explicitly or implicitly
defining HIV as a disability. In Discrimination Based on HIV/AIDS and
Other Health Conditions, Daniel W. Webber and Lawrence Gostin survey
each state's definition of disability and conclude that "the
majority of state enactments closely track the ADA definition of
disability." (97) A few states, such as New York, New Jersey, and
Iowa, have ensured protection for people with HIV by defining disability
more expansively. (98) New York differs from the ADA insofar as it
excludes the requirement that a disability must limit "a major life
activity." (99) New Jersey explicitly defines HIV/AIDS as a
disability. (100) Iowa's Civil Rights Act is the most expansive of
the three because it not only lists HIV as a disability, but also states
that "[t]he inclusion of a condition related to a positive human
immunodeficiency virus test result in the meaning of
'disability' under the provisions of this chapter does not
preclude the application of the provisions of this chapter to conditions
resulting from other contagious or infectious diseases." (101)
While all of these state statutes ensure protection for people with
HIV, they do little more than the federal statutes to protect people
with highly infectious diseases because, as mentioned earlier, courts
are likely to find that the federal definition of disability is
sufficiently inclusive. The major point of doctrinal tension with regard
to highly infectious diseases is how to define "direct threat"
and healthcare practitioners' responsibilities when there is a
direct threat. My survey of states' laws as well as Webber and
Gostin's work suggest that the term or concept of direct threat
either has been used in state statutes in a manner that is consistent
with the ADA's standard or not at all. (102) As such, state
disability laws do not impose upon physicians a duty to treat during an
epidemic.
Alternatively, under the tort doctrine of abandonment liability,
states could require physicians to provide care once they have begun
treating a patient. Yet case law suggests that such an approach would be
unsuccessful. Typically, a physician is allowed to terminate
unilaterally a relationship with her patient as long as it is not for
discriminatory reasons; however, she must give the patient ample notice
in order to allow the patient to find another physician. (103) Once a
sufficient period of time has elapsed, the physician can terminate the
relationship even if the patient has not been able to find a new
physician. (104) Failure to give adequate notice can constitute a tort
of abandonment. (105) In order to prevail, a plaintiff typically has to
prove that the abandonment was the proximate cause of the patient's
illness or death. (106)
A survey of the case law on abandonment liability reveals that this
cause of action has been successfully invoked in a limited number of
situations. In Meiselmen v. Crown Heights Hospital, the court found that
the defendant doctor and hospital were liable for a tort of abandonment
because they had prematurely discharged a severely ill boy rather than
continue with treatment once they determined that the father was unable
to pay the hospital bills. (107)
Another possible abandonment scenario, one which the Tennessee
Court of Appeals views as the "classic illustration of
abandonment," is a situation where a doctor becomes alarmed because
she has made an error while providing treatment and instructs the
patient to seek another doctor without trying to help remedy or
stabilize the situation. (108)
Failure to provide care because a doctor believes that no further
treatment is warranted is not considered to be a tort of abandonment.
(109) In Hartsell v. Fort Sanders Regional Medical Center, the Tennessee
Court of Appeals found that the doctor had not abandoned a premature
infant when he removed the breathing tube from the infant patient
because he believed the treatment to be futile. (110) Moreover, the
court determined that the relationship was not severed because nurses
and a neonatologist stayed to monitor the infant's health. (111)
As such, it would be unlikely for a physician to be liable for
abandonment if she were to decline to provide care to a patient with a
highly infectious disease, assuming that there were not effective
treatment options for the patient. (112) Based on the current
construction of state disability laws and the ways in which the tort of
abandonment has been interpreted, state laws do not require physicians
to treat people with highly infectious diseases.
E. Emergency Medical Treatment and Active Labor Act
The Emergency Medical Treatment and Active Labor Act (EMTALA) can
theoretically be used as a way to compel physicians to provide care
during an epidemic. Nevertheless, like the federal regulations under the
ADA, this approach is unlikely to succeed. Under EMTALA, hospitals that
receive Medicare reimbursements are required to provide emergency
treatment to all people who come into the emergency room until they are
at least stabilized. (113) This means that those hospitals are required
to (1) assess whether a patient has a condition that is an emergency and
(2) stabilize the patient if she is in an emergency condition. (114)
Consequently, the hospitals would have a responsibility to treat people
with highly infectious diseases if their conditions were deemed to be an
emergency because there is no exception under EMTALA for direct threats
or significant risks.
Physicians' relationships to hospitals are a contractual
mechanism through which physicians may be obligated to provide treatment
to people with highly infectious diseases. In exchange for staff
privileges at local hospitals, physicians are often required to be
"on-call" to provide emergency services for a set duration
during a given time period. (115) Since the hospital is required to
treat all patients who enter the emergency room, a physician, pursuant
to her contract with the hospital, may have a duty to treat those
patients. If an on-call physician negligently acts in a way that is
inconsistent with the hospitals' EMTALA obligations, both the
hospital and the physician can be subject to a $50,000 penalty. (116)
Physicians' duty to treat under EMTALA is voluntary to the
extent that it only applies if a physician has contractually agreed to
provide emergency room services to a hospital. So, a hospital's
duty extends to the physician only if she is. on-call. (117) As the
Fifth Circuit notes, a physician "is free to negotiate with [a
hospital] regarding his responsibility to facilitate a hospital's
compliance with EMTALA." (118)
From a contractual standpoint, a physician's refusal to treat
patients with highly infectious diseases would be likely to jeopardize
her staff privileges at a given hospital. Without staff privileges, she
might be unable to practice medicine in that region because she would be
unable to admit patients to the hospital for the purpose of
administering care. This contractual relationship between physicians and
hospitals creates strong professional, financial, and social pressures
to ensure that emergency room patients with highly infectious diseases
are treated. (119)
Perhaps if physicians were to realize that they are contractually
bound to treat patients with highly infectious diseases at the hospital,
they would be more willing to treat them in their outpatient practices
because they would recognize that exposure to these highly infectious
diseases would be inevitable. Also, if physicians were to learn in the
hospital context techniques intended to minimize their risk of
contracting a highly infectious disease from patients, they might be
more open to integrating those techniques into their outpatient
practices.
One could then question whether the issue of physicians' legal
duties to treat patients with highly infectious diseases under the ADA
is moot if the contractual relationships under EMTALA are sufficiently
strong. Yet, physicians' legal duties under the ADA are still
relevant. With many of these highly contagious diseases, each incidence
of exposure would pose a risk. Hence, the greater the number of contacts
a physicians has with infected patients, the greater the chance of
contracting the disease. As such, physicians might want to minimize
their exposure by limiting the number of affected patients they treat.
Therefore, physicians might restrict themselves to the minimum
requirements the hospitals impose.
Even if all the contractual duties were enforced, the care provided
under EMTALA is still unlikely to be sufficient during an epidemic.
Interpretive guidelines for EMTALA, issued by the Department of Health
and Human Services, indicate that hospitals have a fair bit of
flexibility in how they meet their staffing responsibilities under
EMTALA. HHS's current policies enable hospitals to deny treatment
even if there is a tremendous need.
In 2002, the Center for Medicare and Medicaid Services (CMS), a
division of HHS, articulated the following guidelines:
CMS does not require that a hospital's medical staff provide
on-call coverage 24 hours/day, 365 days/year. If there comes a
particular time that a hospital does not have on-call coverage for
a particular specialty, that hospital lacks capacity to treat [a]
patient needing that specialty service and it is therefore
appropriate to transfer the patient because the medical benefits of
the transfer outweigh the risks.... Medicare does not set
requirements on how frequently a hospital's medical staff of
on-call physicians is expected to provide on-call coverage.... We
are also aware that there are some hospitals that have limited
financial means to maintain on-call coverage all of the time. CMS
allows hospitals flexibility to comply with EMTALA obligations by
maintaining a level of on-call coverage that is within their
capability. (120)
This guidance suggests that the hospitals are not obligated to
require physicians to provide additional on-call coverage even if the
emergency room has a flood of infected patients. Moreover, during an
epidemic, hospitals might be allowed to maintain pre-epidemic levels of
care or even to reduce the level of care they provide in spite of a
surge in need. (121)
If CMS were to allow hospitals to maintain pre-epidemic levels of
care, staffing could become a serious problem. Current levels of
staffing already fail to meet the needs of patients. A study conducted
by the United States General Accounting Office reported that fifty-nine
percent of hospitals surveyed reported problems with on-call specialty
coverage in the 2001 fiscal year. (122) In hospitals, physicians are
typically limited to performing procedures that are within the purview of their specialty. (123) What constitutes a physician's specialty
is determined by the hospital credentialing process, which relies on a
combination of specialty board certifications and peer review. (124) A
physician who acts outside her scope of responsibilities could
jeopardize her hospital privileges. (125) Unless hospitals were to relax
their standards regarding what a given physician could do during an
emergency, the shortage of specialists could have tragic consequences.
In summary, although the ADA was crafted to provide patients with
protection from being denied care based on a disability, the ADA would
fail to do so in cases where people were suffering from highly
infectious diseases. Doctors could either use the direct threat
rationale or explain that the disease is beyond their area of expertise
in order to avoid providing treatment during an epidemic. If the doctor
were to choose the latter approach, she might still be exposed to the
disease. However, she would not be obligated to continue treatment and
continue to put herself at risk. Regardless of which rationale a
physician were to adopt in an attempt to avoid providing care, the ADA
or the state anti-discrimination laws would be unlikely to compel a
physician to provide treatment to people with highly infectious
diseases. Also, as discussed above, while many physicians are
contractually bound to provide care in the emergency room, the staffing
shortages at hospitals might be so great as to make physicians'
duty under EMTALA a band-aid on the gaping hole of a physician shortage.
III. EMERGENCY LEGAL FRAMEWORK
Consistent with the AMA's 2002 statement that physicians
should "[a]pply our knowledge and skills when needed, though doing
so may put us at risk" (126) and the ADA's requirement that
physicians not shelter themselves from risk unless the risk is
significant, physicians should be required to provide care as part of
their professional obligation even if doing so would expose them to some
risk. The question then remains: what should the government be allowed
to demand of physicians during an epidemic?
Recent state legislation and legislative proposals would give
governors tremendous power to suspend or modify state laws in an
emergency for the purpose of responding to the risk of an epidemic
outbreak. Most notably, Professors Lawrence O. Gostin and James G. Hodge
Jr. of the Center for Law and the Public's Health at Georgetown and
John Hopkins Universities have drafted legislation that gives a governor
the right to require in-state physicians to complete whatever tasks the
state's public health authorities request of them. Under this
legislation, a physician's failure to comply would result in the
revocation of her license.
The primary shortcoming of this legislative proposal, as it
pertains to physicians' obligations during an epidemic, is that it
fails to recognize physicians' property interests in their
professional licenses and therefore does not create a scheme by which
physicians are provided with adequate due process protection. A more
effective legislative scheme would recognize that physicians' duty
to treat is linked to their professional license, so their property
interest must be considered and weighed, consistent with traditional
notions of due process. One of the core attributes of due process
analysis is a recognition that there are competing interests at stake
and that these interests must be weighed. To abandon this constitutional
safeguard in an epidemic context would undermine the intended goal of
encouraging physicians to treat patients during an epidemic.
A. Shortcomings in Existing State Emergency Plans
Since September 11, the SARS outbreaks in 2002, and Hurricane
Katrina, lawmakers have realized the need to update laws governing the
prevention, management, and mitigation of emergencies. The basic federal
emergency framework is outlined in the Public Health Service Act of
1944. (127) This Act assigns tremendous responsibility and power to the
executive branch, most notably the Secretary of HHS, during an epidemic
context. Under the Public Health Security Act,
The Surgeon General, with the approval of the Administrator
[Secretary], is authorized to make and enforce such regulations as
in his judgment are necessary to prevent the introduction,
transmission, or spread of communicable diseases from foreign
countries into the States or possessions, or from one State or
possession into any other State or possession.
In conjunction with this responsibility, the Secretary is directed
to work with the states "in the prevention and suppression of
communicable diseases," support the states in their quarantine
efforts, and advise them on matters of public health. (129) In the HHS
Pandemic Influenza Plan, a "blueprint" for how to prepare and
respond effectively to a pandemic, (130) HHS indicates that primary
responsibility for managing the epidemic within a given jurisdiction
should be left to state and local authorities. (131)
The Public Health Act and HHS's emphasis on state initiative
is not surprising given that healthcare regulation has primarily been
within the purview of the police powers reserved to the states by the
Tenth Amendment. (132) During an epidemic, the federal government's
role under the HHS plan is primarily to advise and support state and
local governments that are directly managing epidemics in their region.
(133) Consistent with that vision, the Secretary of HHS announced in
April 2006, "Any community that fails to prepare--with the
expectation that the federal government can come to the rescue--will be
tragically wrong." (134) Therefore, states' and local
governments' emergency response plans are of the utmost importance
when considering physicians' legal duties during an epidemic.
Health experts worry that many states' and local
governments' plans and accompanying regulations are woefully
inadequate. For example, the Rand Corporation's study of
California's emergency preparedness reveals serious shortcomings
despite the fact that the state has devoted "significant resources
to preparedness activities." (135) Some of the problems facing
California include: (1) local governments are not sure what they are
supposed to do in an emergency nor do they know how to complete many
crucial tasks; (136) (2) low-income minority groups are among the people
most at risk during an epidemic, but little has been done to include
them in the epidemic planning process; (137) and (3) the California
State Department of Health lacks strong leadership to facilitate
coordination and resource sharing within the state, hence local
jurisdictions do not believe that they can count on the state agency in
an emergency. (138) According to a 2005 study by the nonpartisan,
nonprofit organization Trust for America's Health (TFAH),
California is not the outlier but rather the norm with respect to
emergency preparedness. Only two states, Rhode Island and South Dakota,
are deemed to have "plans, incentives, or provisions to encourage
healthcare workers to continue coming to work in the event of a major
infectious disease outbreak." (139)
B. Model State Emergency Health Powers Act
Professors Gostin and Hodge share TFAH's concerns about
states' capacities for managing an epidemic. They believe that many
states' laws are antiquated and fragmented since the laws had been
developed defensively in response to specific, historic threats.
Therefore, Gostin and Hodge have worked to create legislation that
addresses pertinent legal issues that would arise before, during, and
after an epidemic. (140)
Shortly after the first confirmed anthrax cases in October 2001 and
at the behest of the CDC's General Counsel, the Center began
drafting the Model State Emergency Health Powers Act (MSEHPA) under the
leadership of Gostin and Hodge. (141) The MSEHPA was created in order to
"facilitate the detection, management, and containment of public
health emergencies while appropriately safeguarding personal and
proprietary interests." (142) The MSEHPA is temporally divided into
three sections--a state's powers prior to the declaration of a
state of emergency, the process of declaring a state of emergency, and a
state's authority during a state of emergency. Under the MSEHPA,
during a state of emergency as potentially defined solely by the
governor, (143) the governor can "[s]uspend the provisions of any
regulatory statute" governing state business and agency actions if
"strict compliance ... would prevent, hinder, or delay necessary
action[s] by the public health authorities as they respond to a public
health emergency.
Many states have found either parts of or the whole MSEHPA to be
helpful. As of July 2006, legislators in forty-four states and the
District of Columbia had introduced bills that replicate some of the
language or the principles in the MSEHPA. (145) Sixty-six of these bills
had passed in thirty-eight states and the District of Columbia by July
2006. (146) Some experts worry that the MSEHPA does not adequately
protect civil liberties and patients' privacy. (147)
MSEHPA section 608(a) addresses physicians' legal duties in an
emergency. It provides that during a public health emergency, public
health authorities can exercise the power "[t]o require in-state
health providers to assist in the performance of vaccination, treatment,
examination, or testing of any individual as a condition of licensure,
authorization, or the ability to continue to function as a health care
provider in [the] State." (148) In essence, the proposed statute
requires in-state physicians to complete whatever tasks a state's
public health authority requests of them and allows the state to revoke
the license of those who do not comply.
The drafters of the MSEHPA should be commended for their efforts to
address a legal issue that in most states' emergency health plans
has been overlooked or punted due to controversy. (149) For example, the
three most populous states--California, Texas, and New York--all have
emergency preparedness plans that fail to delineate the demands that the
governors or state health authorities can place upon physicians. (150)
However, MSEPHA gives too much power to the governor and state health
authorities.
C. Proposals for Procedural Safeguards
The governor in conjunction with public health authorities should
have the ability to declare a state of emergency as provided by the
MSEHPA (151) if she believes that there is a new infectious agent that
could cause "substantial future harm" to a large population.
(152) During an epidemic, the medical community may not have the
opportunity to engage in a consensus-based model of determining what
constitutes objective, medical evidence as laid out in the ADA,
especially if a particular viral strain has recently mutated. In a state
of emergency, the governor would be able to circumvent the consensus
process and determine the level of benefit obtained from providing care
to the infected patients as compared to the degree of risk to the
physicians.
The principle guiding the governor's decision should be that
physicians would only be required to provide care to patients with
highly infectious diseases if the benefit to the patients and those who
might be infected by the patients outweighs the risk to the physician,
taking into account the risk she faces as person living in a region with
an epidemic, duties to other patients and family, as well as the medical
resources to which the physician has access. If the governor decides
that physicians should be required to provide a particular type of care
in a particular type of context, the governor should be required to
articulate her determinations and the basis for these determinations.
Under the MSEHPA framework, the consequence of noncompliance is
delicensure. Such a consequence is appropriate because the role that is
being asked of physicians is directly tied to their professional status.
Unfortunately, under the framework laid out in the MSEHPA, the
governor's power to place demands on physicians as a condition of
licensure would be virtually unbridled. Physicians are not a suspect
class and therefore laws pertaining to them are not subject to a
heightened level of scrutiny under the Equal Protection Clause. (153)
Nonetheless, the MSEHPA plan as it pertains to physicians would be
deemed unconstitutional because it curtails physicians' property
interests in their license without at least the minimum due process to
which the physicians are entitled under the Fourteenth Amendment. While
it is beyond the scope of this Note to engage in a complete analysis of
the prodigious jurisprudence on what process is due in a given
circumstance, it is clear that at minimum physicians are
constitutionally entitled to a post-deprivation administrative hearing with the opportunity for judicial review if the state wants to revoke
their licenses because they refused to provide care during an epidemic.
(154)
Unless a state were to conscript the entire population during an
epidemic, under the MSEHPA, it would be likely that a state would be
treating healthcare providers differently from non-healthcare providers
by requiring them to treat infected patients during an epidemic.
However, healthcare providers are not a suspect class and therefore laws
governing their obligations "cannot run afoul of the Equal
Protection Clause if there is a rational relationship between disparity
of treatment and some legitimate governmental purpose." (155) Given
this highly deferential standard, a court would be likely to uphold laws
modeled after the MSEHPA, deeming them to be rationally related to the
purpose of managing an epidemic. Therefore, the Equal Protection Clause
offers minimal protection to physicians in the context of legislation
like the MSEHPA.
The Due Process Clause, however, affords physicians greater
protection from delicensure during and after an epidemic. The process
for determining whether there is a property interest at stake is set
forth by the Supreme Court in Board of Regents of State Colleges v.
Roth: "Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an independent source
such as state law...." (156) One such understanding is the interest
one has in the license granted by the state.
The jurisprudence regarding an interest in one's license is a
subset of the broader set of rights related to the right to engage in
one's chosen profession. (157) In the context of motor vehicles
licenses, the Supreme Court in Bell v. Burson held:
Once licenses are issued, ... their continued possession may become
essential in the pursuit of a livelihood. Suspension of issued
licenses thus involves state action that adjudicates important
interests of the licensees. In such cases the licenses are not to
be taken away without that procedural due process required by the
Fourteenth Amendment. (158)
Many states have explicitly recognized that one has a property
interest in a medical license and consequently a due process right under
the Fourteenth Amendment. The Georgia Supreme Court has held, "The
right to practice medicine is ... a valuable property right," (159)
a right of such importance that it should be treated "in the nature
of criminal proceedings." (160) Similarly, the Supreme Court of
Pennsylvania in 2004 stated:
This Court has recognized as well established the principle that
'due process is fully applicable to adjudicative hearings involving
substantial property rights. ...' Such property rights perforce
include the right of an individual to pursue a livelihood or
profession, thus triggering the protective mechanism of procedural
due process. (161)
The Wyoming Supreme Court found that the right to practice medicine
was a property right and therefore "[i]t follows that the
provisions of the Constitution of the United States and the Constitution
of the State of Wyoming pertain and require that due process of law be
afforded prior to revocation of such a property right." (162)
A physician's property interest in her medical license is not,
however, a fundamental right. In the 1926 opinion Lambert v. Yellowley,
the Supreme Court addressed this issue directly, holding that
"there is no right to practice medicine which is not subordinate to
the police power of the states." (163) Since, the Supreme Court has
expressed a reluctance to recognize additional fundamental rights,
especially in the realm of property rights. (164) The Court's
position in Lambert still is controlling, as exemplified by the Third
Circuit's affirmance of a district court opinion which held that
the healthcare providers "err[ed] ... in classifying the right to
practice one's chosen profession as a fundamental right."
(165)
As such, the substantive due process analysis in this context would
consider whether the government action is arbitrary or shocks the
conscience. (166) Such a standard would make it hard for physicians to
prevail in a challenge against a governor's actions because they
would have to show the government "abus[ed] its power, or
employ[ed] it as an instrument of oppression." (167) But in an
emergency context, such judicial review could be meaningful. During an
epidemic there would be a heightened risk that the governor, subject to
intense pressures from multiple parties, including alarmed constituents
and federal officials trying to contain an epidemic, might act in an
arbitrary or irrational fashion. So, even a minimal level of scrutiny as
applied by the courts provides an important check on the
executive's power to delicense physicians if they do not comply
with the governor's demands.
Unfortunately, as noted above, the MSEHPA proposal fails to
recognize the need for procedural due process in the context of
physicians' rights. A hearing would provide an opportunity for
physicians to challenge the standards a governor uses in determining
physicians' duties and would fulfill physicians' right to be
heard in conjunction with the deprivation of their property interest.
The Court has consistently held that state deprivation of a
property right must be accompanied by "notice and opportunity for
heating appropriate to the nature of the case.: (168) What constitutes a
constitutionally appropriate hearing is rooted in the factors laid out
in Mathews v. Eldridge: (1) the private interest implicated by the
official action; (2) the risk of erroneous deprivation from existing
procedures and the potential value of additional procedural safeguards;
and (3) the government's interest, including the potential burden
of implementing additional or substitute procedural requirements. (169)
If a governor were to reasonably anticipate that the epidemic would
be short, then the delicensure process and the accompanying hearing
could wait until after the threat subsides. Under these circumstances, a
state should provide a post-epidemic but pre-deprivation hearing before
taking away a physician's license.
If the duration of the epidemic was unknown and a state were to
engage in delicensure during the epidemic, the state probably would not
have to provide a pre-deprivation hearing. However, the state should be
required to provide a post-deprivation hearing in a timely manner. The
following analysis assumes that the length of an epidemic could not
reasonably be anticipated by the governor and consequently that
delicensure and the accompanying procedural due process would occur
during the epidemic.
The Mathews test might be applied as follows during an epidemic of
avian flu if the governor tries to require physicians to provide care
along the lines outlined in the MSEHPA. (170) To start, it is clear that
the interest of physicians in their medical license is high. At issue
are physicians' livelihoods, reputations, and abilities to legally
use their skills to treat patients--albeit the patients without avian
flu. As noted by a Georgia district court, the interest in one's
professional license is so high that it may be entitled to the same due
process protection as criminal proceedings. (171) Moreover, as discussed
in Part I, most physicians who are currently practicing in the United
States did not expect that providing care during an epidemic would be a
condition of their licensure. (172)
With regard to factor two--the adequacy of existing procedures--the
baseline created by the MSEHPA provides no procedural safeguard for
challenging a governor's directives in a state of emergency with
regard to the duty to treat. Even if the courts employ a highly
deferential standard in assessing the governor's judgment,
physicians would still need the opportunity to challenge the
governor's assessment that the executive order advances the goal of
trying to manage the epidemic. This is a core element of assessing risk
during an epidemic. As discussed above, society, and more specifically
the legal system, values physicians' professional judgment. In a
hearing, even if it is simply an administrative hearing, a
physician's ability to meaningfully contest the executive order as
applied to her provides an essential safeguard against the power of the
state's executive.
Finally, in an extended avian flu outbreak, the government's
burden of providing a hearing would undoubtedly be great. The courts
probably would be overburdened with quarantine cases and short-staffed
due to illness, and relevant witnesses might be otherwise occupied
managing the epidemic. It is in these circumstances that the
Court's statement in Hodel v. Virginia Surface Mining and
Reclamation Association applies: "[D]eprivation of property to
protect the public health and safety is 'one of the oldest
examples' of permissible summary action." (173) Yet, the
emergency does not absolve the government of the obligation to provide a
hearing to the parties whose property interests are curtailed during an
epidemic. In Hodel, the mine operators whose mines had received
immediate cessation orders were provided with a post-deprivation
administrative hearing within five days of the deprivation and the
opportunity for judicial review, which the court found to be
constitutionally adequate. (174)
An epidemic differs from a cessation order or another emergency
where there is an isolated event, yet the ongoing nature of the crisis
does not justify depriving physicians of their rights. Although an
imperfect analogy, the recent jurisprudence on enemy-combatants'
rights during war as discussed in Hamdi v. Rumsfeld, indicates that even
in extreme circumstances, "[a]ny process in which the
Executive's factual assertions go wholly unchallenged or are simply
presumed correct without any opportunity for the alleged combatant to
demonstrate otherwise falls constitutionally short." (175) Such
would be the risk if states implemented epidemic response plans that
failed to give physicians an opportunity to challenge governors'
assertions.
The states might find providing administrative or judicial
proceedings difficult, but such proceedings should be logistically
possible. Many states already have extensive procedures for determining
whether a physician should have her license revoked. For example,
California, New York, Ohio and Texas all have boards of medical
licensure and discipline that are imbued with the legal authority to
investigate, conduct hearings, and adjudicate issues relating to
physicians' ability to retain their licenses. (176) After the
boards make their determinations, the decisions can be appealed to their
respective state judiciaries. (177)
Preparations in anticipation of an epidemic are being made by the
state courts. Most notably, the Public Health Law Bench Book for Indiana
Courts provides clear guidelines for how a judge during an epidemic
might relocate chambers, include litigants who might not be able to
appear in person because of concerns regarding contagiousness,
consolidate cases, and manage an increased caseload. (178) Similarly,
the California courts have plans that provide guidance on managing staff
shortages and prioritizing demands on the judiciary at various stages of
an epidemic threat. (179) These plans are part of an important effort to
ensure that due process rights are not abandoned during times of crisis.
Undoubtedly, issues of quarantine and isolation are likely to be
among the courts' priorities during an epidemic. (180) One might
argue that because quarantine and isolation pertain to liberty
interests, the need to hear these cases should take precedence over
hearing cases regarding physicians' property interests. Another
possible critique is that procedural due process would be irrelevant
during an epidemic because physicians' decisions to provide care
would be made irrespective of the procedural due process they would be
afforded.
Certainly there are some physicians who under no circumstances
would provide care during an epidemic. They may perceive that the risk
to their health outweighs their concern for their medical license.
However, without clear standards, health authorities could easily make
unreasonable demands of physicians in response to a tidal wave of public
paranoia. Physicians potentially could refuse to comply and hope that
afterward their position would be supported by the courts, thereby
allowing physicians to maintain their licenses despite non-compliance.
Such a scenario would undermine the very purpose of the MSEHPA's
provision.
Providing a hearing during an epidemic would not just satisfy the
procedural due process rights of those who would be subject to
delicensure. It would also help inform those physicians who had yet to
confront the dilemma of whether to provide care to patients with highly
infectious diseases of the cost of failing to comply with states'
demands. Ideally, once fully informed, more physicians would be willing
to provide care during an epidemic.
Ironically, the clearest explanation of the shortcomings and the
implications of the MSEHPA's treatment of physicians' duty of
care is by Gostin himself. In a law review article by Gostin and his
colleagues written contemporaneously with the MSEHPA, he notes:
"Broad discretion and the absence of criteria also invite abuse of
compulsory powers or their discriminatory use against stigmatized or
marginalized groups, or create the perception of such abuse against the
vulnerable even when health officials have no malevolent intentions." (181)
While physicians are not usually viewed as a "stigmatized or
marginalized group," during an epidemic they could be particularly
vulnerable if health authorities abuse their powers. Therefore, it is
essential that physicians are ensured adequate due process protection.
CONCLUSION
Given the persistent tension within the medical community over
physicians' duties during an epidemic, as well as the medical
community's influence over the laws that govern physicians, the
lack of legal clarity about physicians' duty of care during an
epidemic is not surprising. Nevertheless, allowing this uncertainty to
continue could have devastating consequences for both the public and
physicians. Gostin and Hodge's attempt to rectify this problem is a
start, but provides few of the due process protections necessary for
implementing such a legal duty. Some might argue that there is no plan
that could compel all physicians to provide care during an epidemic and
therefore it is futile to devote resources to such an endeavor. While
perhaps it is impossible to facilitate complete compliance, failure to
create a meaningful framework for determining physicians' duties
during an epidemic increases the chance of noncompliance.
In an emergency context, there is no way chiropractic office to establish in a vacuum
whether a given physician should be required to provide care. The
competing factors that have been discussed above are numerous--the
interests of the patients, the doctors' concerns about their
health, the needs of non-infected patients, and the interests of the
public at large. Ensuring appropriate procedural due process is a
formalized way of weighing the various parties' interests during an
epidemic, a mechanism that is constitutionally required when a
physician's license is revoked.
Recent case law has reiterated that even in times of emergency and
crisis, due process remains crucial. What exactly is required under
Mathews remains an issue for future research. But if, at the behest of a
governor, physicians are required to place themselves at risk during an
epidemic, then it is essential that physicians be afforded the process
they are due.
(1.) Lawrence O. Gostin, Scott Burris & Zita Lazzarini, The Law
and the Public's Health: A Study of Infectious Disease Law in the
United States, 99 COLUM. L. REV. 59, 97 (1999).
(2.) The risk from treating HIV/AIDS is much lower than the risk
from treating other infectious diseases, in part because epidemiologists
have developed highly effective techniques for reducing the risk of
occupational exposure to and contraction of HIV/AIDS. Although the exact
rate of transmission is a matter of contention, the Public Health
Service estimates that exposure to HIV/AIDS from an infected needle
stick or sharp object is approximately 0.3% and the rate of infection
from contact with a mucous membrane or nonintact skin is 0.09% or less.
Updated U.S. Public Health Service Guidelines for the Management of
Occupational Exposures to HIV and Recommendations for Postexposure
Prophylaxis, 54 MORBIDITY & MORTALITY WKLY. REP. (SPECIAL ISSUE) 1,
2 (2005), available at http://www.cdc.gov/mmwr/PDF/rr/rr5409.pdf.
(3.) Part of the reason the threat of avian flu is so worrisome is
because subtypes of the flu have caused devastating global pandemics in
the past. Ctrs. for Disease Control & Prevention, Questions and
Answers: Reconstruction of the 1918 Influenza Pandemic Virus,
http://www.cdc.gov/flu/about/qa/1918flupandemic.htm. In 1918, the United
States lost over half a million people to the Spanish flu (H1N1).
Worldwide, the death toll was approximately 20 million to 50 million
people. Id. Some worry that the H5N1 subtype of avian flu could be even
more devastating than the Spanish flu if H5N1 mutates to the point where
it can be effectively transmitted from humans to humans. U.S. Dep't
of Health & Human Servs., PandemicFlu.gov--General Information,
http://www.pandemicflu.gov/general/#factsheets. Since 2003, the H5N1
subtype has been transmitted to humans in 329 cases, leading to 201
deaths, none of which has been in the United States. World Health Org.,
Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1)
Reported to WHO, http://www.who.int/csr/disease/avian_influenza/country/cases_table_2007 10 02/en/index.html. There have been rare incidents in
which a human has transmitted the H5N1 subtype to one other human.
Unfortunately, H5N1 is anticipated to continue to mutate to the point
where it has a high rate of transmission from person to person.
Currently, the lack of statistical information makes it difficult to
predict the timing and effects of an avian flu pandemic. See U.S.
Dep't of Health & Human Servs., supra.
(4.) As of May 2005, according to the Bureau of Labor Statistics,
there were 6,547,350 people in the category of "Healthcare
Practitioner and Technical Occupations," which included occupations
such as doctors, dentists, nurses, occupational health specialists,
pharmacy technicians, and radiation specialists. Bureau of Labor
Statistics, U.S. Dep't of Labor, Occupational Employment and Wages,
May 2005: Healthcare Practitioners and Technical Occupations,
http://www.bls.gov/oes/2005/may/oes290000.htm. In addition to this
category, 3,363,800 people, as of May 2005, were employed in
"Healthcare Support Occupations," in such capacities as
nursing aides, orderlies, and home health aides. Bureau of Labor
Statistics, U.S. Dep't of Labor, Occupational Employment and Wages,
May 2005: Healthcare Support Occupations,
http://www.bls.gov/oes/2005/may/oes31000.htm. People in all of these
occupations, totaling almost ten million workers as of 2005, would be
more likely to become exposed to highly infectious diseases than the
public at large, and the efficacy of safety precautions is still
unknown.
(5.) See generally Abigail Zuger & Steven H. Miles, Physicians,
AIDS, and Occupational Risk: Historic Traditions and Ethical
Obligations, 258 JAMA 1924 (1987) (discussing the history of
physicians' responses to epidemics).
(6.) Id. at 1924.
(7.) Id. at 1925.
(8.) Id.
(9.) Id.
(10.) See Samuel J. Huber & Matthew K. Wynia, When Pestilence
Prevails: Physician Responsibilities in Epidemics, 4 AM. J. OF BIOETHICS W5, W6 (2004).
(11.) Zuger & Miles, supra note 5, at 1925.
(12.) Huber & Wynia, supra note 10, at W6.
(13.) See generally Daniel M. Fox, The Politics of Physicians"
Responsibility in Epidemics: A Note on History, HASTINGS CENTER REP.,
Apr.-May 1988, at 5, 5-7 (arguing that historically some physicians
treated people, especially low income people, with highly infectious
diseases because of contractual agreements with civic leaders).
(14.) Zuger & Miles, supra note 5, at 1926.
(15.) Id. at 1924-25.
(16.) Huber & Wynia, supra note 10, at W6.
(17.) JOHN BELL & ISAAC HAYS, CODE OF ETHICS (1847), reprinted
in THE AMERICAN MEDICAL ETHICS REVOLUTION 324 app. at 333 (Robert B.
Baker et al. eds., 1999).
(18.) Robert B. Baker, The American Medical Ethics Revolution, in
THE AMERICAN MEDICAL ETHICS REVOLUTION, supra note 17, at 17, 17.
(19.) Id. at 18.
(20.) Robert Veatch, a Professor of Medical Ethics at Georgetown
University, questions the soundness of physicians as the source of their
own professional codes of conduct and by extension their role in
developing the legal standards by which they are judged. Robert M.
Veatch, Who Should Control the Scope and Nature of Medical Ethics?, in
THE AMERICAN MEDICAL ETHICS REVOLUTION, supra note 17, at 158, 158-59,
163. Dr. Mark Siegler, the Director of the MacLean Center for Clinical
Medical Ethics at the University of Chicago Hospitals, believes that
doctors are uniquely qualified to control the scope and nature of
medical ethics because many of the most crucial ethical decisions arise
in the context of the physician-patient relationship. Siegler argues
that the most ethical outcomes can be obtained through a shared,
non-adversarial exchange between patients and physicians. Mark Siegler,
Medical Ethics as a Medical Matter, in THE AMERICAN MEDICAL ETHICS
REVOLUTION, supra note 17, at 171.
(21.) See Chalmers C. Clark, In Harm's Way: AMA Physicians and
the Duty to Treat, 30 J. MED. & PHIL. 65, 66-67 (2005).
(22.) See Robert Baker & Linda Emanuel, The Efficacy of
Professional Ethics: The AMA Code of Ethics in Historical and Current
Perspective, HASTINGS CENTER REP., July-Aug. 2000, at S13, S13-S17.
(23.) Dr. Matthew K. Wynia is the Director of the AMA's
Institute for Ethics and a Clinical Assistant Professor of Medicine at
the University of Chicago Hospitals. American Medical Association--Staff
Biosketches, http://www.ama-assn.org/ama/pub/category.
(24.) Huber & Wynia, supra note 10, at W5 (footnote omitted).
(25.) See id. at W7; Zuger & Miles, supra note 5, at 1926.
(26.) See Huber & Wynia, supra note 10, at W7; Zuger &
Miles, supra note 5, at 1926.
(27.) See John D. Arras, The Fragile Web of Responsibility: AIDS
and the Duty to Treat, HASTINGS CENTER REP., Apr.-May 1988, at 10,
10-14; Huber & Wynia, supra note 10, at W7.
(28.) Huber & Wynia, supra note 10, at W7. See generally Baker,
supra note 18 (chronicling the many changes to AMA Code of Ethics, which
was later renamed the Principles of Medical Ethics, and highlighting the
goals and reasoning behind these amendments).
(29.) See Gostin et al., supra note 1, at 97.
(30.) COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MEO.
ASS'N, CEJA REPORT A-I-87: ETHICAL ISSUES INVOLVED IN THE GROWING
AIDS CRISIS 1 (1987), available at http://www.ama-assn.org/ama
1/pub/upload/mm/369/ceja_ai87.pdf.
(31.) COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED.
ASS'N, CEJA REPORT 5-I-01: A DECLARATION OF PROFESSIONAL
RESPONSIBILITY 3 (2001), available at
http://www.amaassn.org/ama1/pub/upload/mm/369/ceja_5i01.pdf.
(32.) Id. at 1.
(33.) Id.
(34.) Rhode Island Dep't of Health, Board of Licensure and
Discipline, http://www.health.ri.gov/hsr/bmld.
(35.) Monica Noether, The Effect of Government Policy Changes on
the Supply of Physicians: Expansion of a Competitive Fringe, 29 J.L.
& ECON. 231, 233 (1986); see also Shirley Svorny, Licensing Doctors:
Do Economists Agree?, 1 ECON. J. WATCH 279, 284 (2004).
(36.) See Noether, supra note 35, at 233; Svorny, supra note 35, at
280-81.
(37.) See Svorny, supra note 35, at 285-89; see generally Noether,
supra note 35 (describing growth in the supply of physicians in the
United States in the 1960s and 1970s due to an increase in the size of
American medical school classes and the number of foreign medical
graduates).
(38.) Noether, supra note 35.
(39.) See Michael Moran, The Health Professions in International
Perspective, in REGULATING THE HEALTH PROFESSIONS 19 (Judith Allsop ed.,
2003).
(40.) WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS [section] 32
(4th ed. 1971).
(41.) John A. Siliciano, Wealth, Equity, and the Unitary Medical
Malpractice Standard, 77 VA. L. REV. 439, 446-47 (1991). The process of
defining what constitutes a physician's medical community has been
highly contested. In Shilkret v. Annapolis Emergency Hospital Ass
'n, the Maryland Court of Appeals provided a clear summary of the
history of "the strict locality rule," which judged
physicians' conduct by the standards of their region. 349 A.2d 245,
246 (Md. 1975). Yet, the court asserted that due to greater uniformity
of physician training and specialization, a physician's behavior
should be judged by the national standard of care. Id. at 252-53.
(42.) See M. Gregg Bloche, The Supreme Court and the Purposes of
Medicine, 354 NEW ENG. J. MED. 993 (2006).
(43.) 546 U.S. 243, 286 (2006) (citations omitted)
("[V]irtually every medical authority from Hippocrates to the
current American Medical Association (AMA) confirms that assisting
suicide has seldom or never been viewed as a form of prevention, cure,
or alleviation of disease, and (even more so) that assisting suicide is
not a legitimate branch of that science and art." (quotation marks omitted)).
(44.) 530 U.S. 914, 935 (2000) (citation omitted).
(45.) See generally Stenberg, 530 U.S. 914 (finding a Nebraska
statute that criminalized "partial-birth" abortions
unconstitutional on the grounds that the statute did not have an
exception for when the life or health of the mother required such a
procedure and that it imposed an undue burden on the right to have an
abortion by limiting a woman's ability to choose a common abortion
procedure).
(46.) One could hope that modern doctors' reactions to
epidemics would differ from their predecessors' due to changed
notions of professional responsibility, greater faith in technology,
increased social pressure, or myriad other factors. However, current
trends in medicine suggest that such a sea change should not be
expected.
(47.) Doran Smolkin, HIV Infection, Risk Taking, and the Duty to
Treat, 22 J. MED. & PHIL. 55, 56 (1997) (citation omitted).
(48.) See Am. Bar Ass'n AIDS Coordinating Comm., Calming AIDS
Phobia: Legal Implications of the Low Risk of Transmitting HIV in the
Health Care Setting, 28 U. MICH. J.L. REFORM 733, 733 (1995)
("[O]nly one health care worker has ever been documented as the
source of HIV transmission to a patient.").
(49.) Sherry L. Grace et al., The Occupational and Psychosocial
Impact of SARS on Academic Physicians in Three Affected Hospitals, 46
PSYCHOSOMATICS 385, 389 (2005).
(50.) Id. at 390.
(51.) See Am. Bar Ass'n AIDS Coordinating Comm., supra note
48.
(52.) See Grace et al., supra note 49, at 389.
(53.) Id. This survey polled Canadian physicians who worked in a
public teaching hospital. Their views regarding their duties during an
epidemic might differ from the views of physicians in the United States,
especially those who are in private practice. Therefore, it is quite
possible that the survey responses are not representative of the
attitudes of physicians in the United States. See infra note 87.
(54.) David W. Webber & Lawrence O. Gostin, Discrimination
Based on HIV/AIDS and Other Health Conditions."
"Disability" as Defined Under Federal and State Law, 3 J.
HEALTH CARE L. & POL'Y 266, 271 (2000).
(55.) See Americans with Disabilities Act (ADA) of 1990, 42 U.S.C.
[section] 12101 (2000).
(56.) Bragdon v. Abbott, 524 U.S. 624, 655 (1998). The Court held
in Bragdon that "respondent's infection substantially limited
her ability to reproduce" because of concerns about transmission;
therefore, HIV constituted a disability because it limited the
"major life activity" of reproduction. Id. at 639-41. The
Court did not reach the issue of whether asymptomatic HIV is inherently
a disability. See Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184,
198 (2002) (noting that Bragdon declined "to consider whether HIV
infection is a per se disability under the ADA").
(57.) HIV/AIDS is used as a point of reference because much of the
recent case law regarding physicians' legal duties to treat people
with infectious diseases was developed in the context of physicians
refusing to treat people with HIV/AIDS. Yet, from an epidemiological
standpoint, highly infectious diseases such as SARS and avian flu are
extremely different from HIV/AIDS.
(58.) 42 U.S.C. [section] 12182(a) (2000).
(59.) 42 U.S.C. [section] 12102(2)(A) (2000). This provision also
includes people who have "a record of such an impairment; or [are]
being regarded as having such an impairment." 42 U.S.C. [section]
12102(2)(B)-(C) (2000).
(60.) 42 U.S.C. [section] 12181(7)(F) (2000).
(61.) Sharrow v. Bailey, 910 F. Supp. 187, 191 (M.D. Pa. 1995).
(62.) See Webber & Gostin, supra note 54, at 267. HHS explains
that it did not try to list all the diseases that would be considered
disabilities because of the "difficulty of ensuring the
comprehensiveness of any such list." 45 C.F.R. pt. 84, app. A
(2005). Although this regulation was promulgated in reference to the
Rehabilitation Act, the guidelines for interpreting the ADA are
primarily derived from the standards set forth under the Rehabilitation
Act of 1973 and thus apply in this context to the ADA. The
Rehabilitation Act prohibited discrimination against a person with
disabilities "solely by reason of her or his disability ... [for]
any program or activity receiving Federal financial assistance,"
including programs run by the federal government itself, such as
Medicare and Medicaid. 29 U.S.C. [section] 794(a) (2000). The ADA
expanded the scope of the Rehabilitation Act by prohibiting
discrimination in all public accommodations, rather than merely in
federally funded programs. In writing the ADA, Congress explicitly
stated that except where otherwise noted, "nothing in this chapter
shall be construed to apply a lesser standard than the standards applied
under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.)
or the regulations issued by Federal agencies pursuant to such
title." 42 U.S.C. [section] 12201(a) (2000). Courts have taken this
part to mean that the ADA and Rehabilitation Act are "interpreted
substantially identically." Lesley v. Chic, 250 F.3d 47, 54 (1st
Cir. 2001) (citing Katz v. City Metal Co., 87 F.3d 26, 31 n.4 (1st Cir.
1996)); see also Bragdon v. Abbott, 524 U.S. 624, 632 (1998) ("The
[congressional] directive requires us to construe the ADA to grant at
least as much protection as provided by the regulations implementing the
Rehabilitation Act.").
(63.) Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 194, 199
(2002) ("It is sufficient for individuals attempting to prove
disability status under this test to merely submit evidence of a medical
diagnosis of an impairment.... Congress intended the existence of a
disability to be determined in ... a case-by-case manner.")
(64.) 42 U.S.C. [section] 12102(2)(A) (2000).
(65.) Toyota Motor Mfg., 534 U.S. at 198 (holding that an
impairment must be permanent or long-term to qualify as a disability
under the ADA).
(66.) 42 U.S.C. [section] 12182(b)(3) (2000) (emphasis added).
(67.) Bragdon, 524 U.S. at 649 (citing Sch. Bd. of Nassau County v.
Arline, 480 U.S. 273, 287 (1987)).
(68.) Id.
(69.) In Chevron U.S.A., Inc. v. Echazabal, the Supreme Court
highlighted the need for a "particularized enquiry into the harms
the employee would probably face." 536 U.S. 73, 86 (2002). This
reinforced the holding in Arline, 480 U.S. at 287-89, which was codified
in the Code of Federal Regulations:
In determining whether an individual poses a direct threat to the
health or safety of others, a public accommodation must make an
individualized assessment, based on reasonable judgment that relies
on current medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk.
28 C.F.R. [section] 36.208(c) (2005); see also Bragdon, 524 U.S. at
649; Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003)
(reversing the district court's grant of summary judgment because
the employee had raised a material question of fact as to whether the
employer had met its burden of proof regarding the employee representing
a direct threat to himself).
(70.) Bragdon, 524 U.S. at 649.
(71.) Id.
(72.) Id.
(73.) Henry Masur, Ezekiel Emanuel & H. Clifford Lane, Severe
Acute Respiratory Syndrome: Providing Care in the Face of Uncertainty,
289 JAMA 2861, 2861 (2003). Throughout the outbreak, the CDC continually
updated its recommendations and provided additional information. Id.
(74.) Id. at 2861-62.
(75.) Bragdon, 524 U.S. at 651. Elaborating on this point with
regard to HIV, the Court noted: "The Guidelines set out CDC's
recommendation that the universal precautions are the best way to combat
the risk of HIV transmission. They do not assess the level of
risk." Id. at 651-52.
(76.) Id.
(77.) Masur et al., supra note 73, at 2862.
(78.) Id.
(79.) Ezekiel J. Emanuel, Do Physicians Have an Obligation to Treat
Patients with AIDS?, 318 NEW ENG. J. MED. 1686, 1688 (1988).
(80.) Bragdon, 524 U.S. at 649.
(81.) Id.
(82.) See supra note 69 and accompanying text.
(83.) One might worry that this logic of diminished duty when
dealing with patients with fatal diseases undermines physicians'
duty of care to patients with HIV. Yet this logic is not compelling in
the HIV/AIDS context for several reasons: (1) there has been adequate
time in which the medical community has by consensus decided there
should be a duty to treat patients with HIV/AIDS; (2) there are
well-tested techniques by which a physician can dramatically slow the
progression of HIV; and (3) healthcare providers' perception of
risk when treating HIV/AIDS was higher than the actual risk of
transmission, which is statistically very low.
(84.) Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987)
(internal citations omitted).
(85.) See generally Scott Bun-is, Dental Discrimination Against the
HIV-Infected: Empirical Data, Law and Public Policy, 13 YALE J. ON REG.
1 (1996). This pre-Bragdon article highlights the ubiquity of
discrimination by dentists against patients with HIV/AIDS and the need
for antidiscrimination laws to address this problem.
(86.) Lawrence O. Gostin, The AIDS Litigation Project, 263 JAMA
2086, 2089 (1990).
(87.) In the SARS context, it is possible that the perception of
risk among the doctors in Toronto was lower than the actual risk. A
study finds that despite having a fairly high risk of contracting SARS
and being among colleagues that had contracted SARS, physicians working
in the large teaching hospitals in Toronto had a disproportionately
"low perceived susceptibility, a sense of invulnerability to
contracting SARS, or an optimistic bias." Grace et al., supra note
49, at 389.
(88.) Lesley v. Chic, 250 F.3d 47, 53-54 (1st Cir. 2001).
(89.) H.R. REP. No. 101-485, pt. 2, at 106 (1990); see also Lesley,
250 F.3d at 54.
(90.) See generally Robert F. St. Peter et al., Changes in the
Scope of Care Provided by Primary Care Physicians, 341 NEW ENG. J. MED.
1980 (1999) (discussing the primary care physician's role as a
gatekeeper who determines whether a patient should see a specialist and
analyzing the expansion of the primary care physician's
responsibilities insofar as she is expected to treat a greater range of
ailments without seeking assistance from a costly specialist).
(91.) See Lesley, 250 F.3d at 50-51. The First Circuit decided that
the doctor did not have the requisite level of expertise even though the
Massachusetts Department of Public Health said, "It was the
Department of Public Health's intent when it issued the Clinical
Advisory that these established steps spinal decompression to prescribe and monitor AZT be
immediately implemented by any licensed obstetrician, including
community obstetricians such as Dr. Chie." Brief for Dep't of
Public Health of the Commonwealth of Massachusetts as Amicus Curiae Supporting Appellant, Lesley, 250 F.3d 47 (No. 00-1254), 2000 WL
35565510.
(92.) Lesley, 250 F.3d at 49.
(93.) Id. at 55. This was a holding under the Rehabilitation Act,
but as previously noted, the standard for interpreting the
Rehabilitation Act and the ADA are the same.
(94.) Id. at 57.
(95.) Id. at 57-59.
(96.) Under the direct threat approach, the physician's
assessment of a patient's condition, especially with regard to
whether the patient poses a direct threat to others, does not receive
deference. See supra note 72. A court will not defer to a
physician's good faith belief that there was a substantial risk if
such a belief conflicts with the prevailing view in the medical
community. Id.
(97.) Webber & Gostin, supra note 54, at 287.
(98.) See id. at 288, 290.
(99.) N.Y. EXEC. LAW [section] 292(21) (McKinney 2006).
(100.) N.J. STAT. ANN. [section] 10:5-5(q) (West 2006).
(101.) IOWA CODE [section] 216.2(5) (2005).
(102.) Webber & Gostin, supra note 54, at 303.
(103.) See, e.g., Payton v. Weaver, 182 Cal. Rptr. 225, 229 (Cal.
Ct. App. 1982).
(104.) Accord id
(105.) Lynch v. Bryant, Nos. 91-5667, 5683, 6054, 1993 U.S. App.
LEXIS 1878 (6th Cir. Jan. 28, 1993); Biby v. Halstead Hosp., Inc., No.
92-1042-MLB, 1993 U.S. Dist. LEXIS 21089 (D. Kan. Nov. 22, 1993).
(106.) Biby, 1993 U.S. Dist. LEXIS 21089, at *10; Tierney v. Univ.
of Mich. Regents, 669 N.W.2d 575, 577-78 (Mich. Ct. App. 2003).
(107.) 34 N.E.2d 367 (N.Y. 1941); see also Le Juene Road Hosp.,
Inc. v. Watson, 171 So. 2d 202 (Fla. Dist. Ct. App. 1965) (finding that
a hospital that undressed, examined, and gave medication to plaintiff in
anticipation of removing his appendix wrongfully discharged him upon
discovering that he could not pay for the surgery).
(108.) Hartsell v. Fort Sanders Reg'l Med. Ctr., 905 S.W.2d
944, 949 (Tenn. Ct. App. 1995) (discussing Burnett v. Layman, 181 S.W.
157 (Tenn. 1915), a case in which a surgeon was held liable for
abandonment after he accidentally ruptured the patient's urethra and then departed from the scene while the patient was bleeding even
though he believed the patient needed additional treatment).
(109.) Id.
(110.) Id.
(111.) Id.; see also Lynch v. Bryant, Nos. 91-5667, 5683, 6054,
1993 U.S. App. LEXIS 1878, at *9-13 (6th Cir. Jan. 28, 1993).
(112.) If in fact effective treatment options were available, the
physician might be subject to a medical malpractice suit.
(113.) Sara Rosenbaum & Brian Kamoie, National Health
Challenges in Population Health: Finding a Way Through the Hospital
Door, The Role of EMTALA in Public Health Emergencies, 31 J.L. MED.
& ETHICS 590, 590-91 (2003).
(114.) 42 U.S.C. [section] 1395dd(a)-(b) (2000); Burditt v. U.S.
Dep't of Health & Human Servs., 934 F.2d 1362, 1366 (5th Cir.
1991); MARK A. HALL ET AL., HEALTH CARE LAW AND ETHICS, 123-28 (6th ed.
2003).
(115.) HALL, supra note 113, at 113.
(116.) 42 U.S.C. [section] 1395dd(d)(1) (2000).
(117.) Hiser v. Randolph, 617 P.2d 774 (Ariz. Ct. App. 1980); HALL,
supra note 113, at 113.
(118.) Burditt, 934 F.2d at 1376.
(119.) Craig W. Dallon, Understanding Judicial Review of
Hospitals' Physician Credentialing and Peer Review Decisions, 73
TEMP. L. REV. 597, 607-09 (2000) (highlighting the importance of
hospital staff privileges to physicians' ability to treat
patients).
(120.) Memorandum from Dir., Survey & Certification Group.,
Dep't of Health & Human Servs., to Associate Reg'l
Adm'rs 2 (June 13, 2002), available at
http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/
SCLetter02-34.pdf.
(121.) Hillary R. Ahle, Anticipating Pandemic Avian Influenza: Why
the Federal and State Preparedness Plans Are for the Birds, 10 DEPAUL J.
HEALTH CARE L. 213, 246 (2007); Rosenbaum & Kamoie, supra note 113,
at 595-98 (detailing the various legislative and administrative actions
that have created uncertainty regarding hospitals' obligations
under EMTALA during an epidemic).
(122.) U.S. GEN. ACCOUNTING OFFICE, HOSPITAL EMERGENCY DEPARTMENTS:
CROWDED CONDITIONS VARY AMONG HOSPITALS AND COMMUNITIES, 50 tbl. 16
(2003), available at http://www.gao.gov/new.items/d03460.pdf.
(123.) William P. Gunnar, The Scope of a Physician's Medical
Practice: Is the Public Adequately Protected by State Medical Licensure,
Peer Review, and the National Practitioner Data Bank?, 14 ANNALS HEALTH
L. 329,342-43 (2005).
(124.) Id. Specialty boards are non-governmental bodies that
determine requirements and policies for board certification in a given
field. Certification is usually based on attending an accredited medical
school, completing an accredited residency, and passing an exam
administered by the specialty board. A physician typically wants to
obtain board certification because it can help increase her salary,
allow her to obtain staff privileges at a hospital, lower her
malpractice insurance, increase the number of referrals she receives,
and generally help her status as a practitioner. Id.
(125.) Id.
(126.) COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED.
ASS'N, CEJA REPORT 5-I-01: A DECLARATION OF PROFESSIONAL
RESPONSIBILITY 3 (2001).
(127.) 42 U.S.C. [section] 201 (2000).
(128.) 42 U.S.C. [section] 264(a) (2000).
(129.) Id. [section] 243(a). The full text of the section reads:
The Secretary is authorized to accept from State and local
authorities any assistance in the enforcement of quarantine
regulations made pursuant to this Act which such authorities may be
able and willing to provide. The Secretary shall also assist States
and their political subdivisions in the prevention and suppression
of communicable diseases and with respect to other public health
matters, shall cooperate with and aid State and local authorities
in the enforcement of their quarantine and other health
regulations, and shall advise the several States on matters
relating to the preservation and improvement of the public health.
(130.) U.S. DEP'T OF HEALTH & HUMAN SERVS., HHS PANDEMIC
INFLUENZA PLAN 1 (2005), available at
http://www.hhs.gov/pandemicflu/plan/pdf/HHSPandemicInfluenzaPlan.pdf.
(131.) Id at 34-39.
(132.) See U.S. CONST. amend. X; Jacobson v. Massachusetts, 197
U.S. 11 (1905) (allowing the Commonwealth of Massachusetts to require
residents to receive a smallpox vaccination for the purpose of limiting
the spread of the disease); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1
(1824).
(133.) See generally U.S. DEP'T OF HEALTH & HUMAN SERVS.,
supra note 130.
(134.) Ceci Connolly, U.S. Plan for Flu Pandemic Revealed;
Multi-Agency Proposal Awaits Bush's Approval, WASH. POST, Apr. 16,
2006, at A1.
(135.) NICOLE LURIE ET AL., RAND CORP., PUBLIC HEALTH PREPAREDNESS
IN CALIFORNIA: LESSONS LEARNED FROM SEVEN HEALTH JURISDICTIONS 4 (2004),
available at http://www.rand.org/pubs/technical_reports/2005/RAND_TR181_.pdf.
(136.) Id. at 5.
(137.) Id. at 6.
(138.) Id.
(139.) SHELLEY A. HEARNE ET AL., TRUST FOR AMERICA'S HEALTH,
READY OR NOT? PROTECTING THE PUBLIC HEALTH FROM DISEASES, DISASTERS, AND
BIOTERRORISM 28 (2005), available at
http://healthyamericans.org/reports/bioterror05/bioterror05Report.pdf.
(140.) Lawrence O. Gostin et al., The Model State Emergency Health
Powers Act: Planning for and Response to Bioterrorism and Naturally
Occurring Infectious Diseases, 288 JAMA 622, 623-24 (2002).
(141.) Id. at 622.
(142.) Id. at 625.
(143.) THE MODEL STATE EMERGENCY HEALTH POWERS ACT [section] 401
(Ctr. for Law & the Public's Health 2001),available at
http://www.publichealthlaw.net/MSEHPA/ MSEHPA2.pdf.
(144.) Id. [section] 403(a)(1).
(145.) CTR. FOR LAW & THE PUBLIC'S HEALTH, THE MODEL STATE
EMERGENCY HEALTH POWERS ACT (MSEHPA): STATE LEGISLATIVE ACTIVITY 1
(2006), available at
http://www.publichealthlaw.net/MSEHPA/MSEHPA%20Leg%20Activity.pdf.
(146.) Id.
(147.) George J. Annas, Bioterrorism, Public Health, and Civil
Liberties, 346 NEW ENG. J. MED. 1337 (2002); Daniel S. Reich,
Modernizing Local Responses to Public Health Emergencies: Bioterrorism,
Epidemics, and the Model State Emergency Health Powers Act, 19 J.
CONTEMP. HEALTH L. & POL'Y 379 (2003).
(148.) THE MODEL STATE EMERGENCY HEALTH POWERS ACT [section] 608(a)
(Ctr. for Law & the Public's Health 2001), available at
http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf.
(149.) In the course of my research, I was unable to find states
that clearly articulate whether physicians have a legal duty to provide
care during an epidemic and the consequences of failing to comply.
Perhaps this lack of precedent explains why the drafters did not cite
any authority for section 608(a) whereas they referenced state statutes
in the interpretive notes of other MSEHPA provisions.
(150.) This is not to say that these state plans do not detail a
clear role for physicians during an epidemic, but rather there is no
discussion of the states' authority to require physicians to
provide certain services. CAL. DEP'T OF HEALTH SERVS., PANDEMIC
INFLUENZA PREPAREDNESS AND RESPONSE PLAN (2006), available at
http://www.dhs.ca.gov/ps/dcdc/izgroup/pdf/pandemic.pdf; N.Y. STATE
DEP'T OF HEALTH, PANDEMIC INFLUENZA PLAN [section] 11 (2006),
available at http://www.health.state.ny.us/diseases/communicable/influenza/ pandemic/docs/pandemic_influenza_plan.pdf; TEX. DEP'T OF STATE
HEALTH SERVS., PANDEMIC INFLUENZA PREPAREDNESS PLAN: DRAFT (2005),
available at http://www.dshs.state.tx.us/idcu/disease/influenza/pandemic/ Draft_PIPP_10_24_web.pdf.
(151.) THE MODEL STATE EMERGENCY HEALTH POWERS ACT [section] 401
(Ctr. for Law & the Public's Health 2001), available at
http://www.publichealthlaw.net/MSEHPA/ MSEHPA2.pdf.
(152.) Id. [section] 104(m)(2)(iii).
(153.) See U.S. CONST. amend. XIV, [section] 1.
(154.) Under the MSEHPA, a governor would be able to suspend
regulatory statutes, including statutes that pertain to a
physician's responsibilities in an emergency. See THE MODEL STATE
EMERGENCY HEALTH POWERS ACT [section] 403(a)(1) (Ctr. for Law & the
Public's Health 2001), available at
http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf. The Model Act reads:
During a state of public health emergency, the Governor may (1)
suspend the provisions of any regulatory statute prescribing
procedures for conducting State business, or the orders, rules and
regulations of any State agency, to the extent that strict
compliance with the same would prevent, hinder, or delay necessary
action (including emergency purchases) by the public health
authority to respond to the public health emergency, or increase
the health threat to the population.
Id. Therefore, physicians would probably be unable to bring
statutory due process claims in response to the governor compelling them
to provide care during an epidemic. For this reason, the Note focuses on
physicians' constitutional claims. However, physicians may also be
able to challenge the constitutionality of legislation that gives the
governor discretion to suspend the existing statutory requirements.
(155.) Cent. State Univ. v. Am. Ass'n of Univ. Professors, 526
U.S. 124, 128 (1999) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993))
(holding that Central State University's decision not to bargain
over the issue of faculty workload could survive rationality review).
(156.) 408 U.S. 564, 577 (1972).
(157.) Schware v. Bd. of Bar Exam'rs of N.M., 353 U.S. 232,
239 (1957) (recognizing the Fifth and Fourteenth Amendment rights of a
New Mexico man not to be denied arbitrarily the right to practice law in
the state).
(158.) 402 U.S. 535, 539 (1971) (citing Goldberg v. Kelly, 397 U.S.
254 (1970); Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969)); see
also Barry v. Barchi, 443 U.S. 55 (1979) (finding a New York State law
that allowed the New York State Racing and Wagering Board to suspend the
license of a driver in the harness horse racing league without a prompt
post-suspension hearing to be unconstitutional).
(159.) Yeargin v. Hamilton Mem'l Hosp., 171 S.E.2d. 136, 139
(Ga. 1969) (quoting Hughes v. State Bd. of Exam'rs, 134 S.E. 42,
46-47 (Ga. 1926)).
(160.) Wall v. Am. Optometric Ass'n, Inc., 379 F. Supp. 175,
184 (N.D. Ga. 1974), aff'd, 419 U.S. 888 (1974) (internal
quotations omitted).
(161.) Khan v. State Bd. of Auctioneer Exam'rs, 842 A.2d 936,
945 (Pa. 2004) (quoting Soja v. Pa. State Police, 455 A.2d 613, 615 (Pa.
1982)).
(162.) Devous v. Wyo. State Bd. of Med. Exam'rs, 845 P.2d 408,
415 (Wyo. 1993).
(163.) Lambert v. Yellowley, 272 U.S. 581, 596 (1926).
(164.) See Washington v. Glucksberg, 521 U.S. 702 (1997); Collins
v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general
matter, the Court has always been reluctant to expand the concept of
substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and
open-ended.").
(165.) Meier v. Anderson, 692 F. Supp. 546, 549 (E.D. Pa. 1988),
aff'd, 869 F.2d 590 (3d Cir. 1989).
(166.) Collins, 503 U.S. at 127, 128; see also County of Sacramento
v. Lewis, 523 U.S. 833, 845-47 (1998) (finding that a police
officer's conduct in a high-speed automobile chase did not violate
motorcycle passenger's substantive due process rights because the
official action was not constitutionally shocking). The Court went on to
elaborate on its understanding of due process:
We have emphasized time and again that the touchstone of due
process is protection of the individual against arbitrary action of
government, whether the fault lies in a denial of fundamental
procedural fairness, or in the exercise of power without any
reasonable justification in the service of a legitimate
governmental objective. While due process protection in the
substantive sense limits what the government may do in both its
legislative and its executive capacities, criteria to identify what
is fatally arbitrary differ depending on whether it is legislation
or a specific act of a governmental officer that is at issue.
Id. at 845-46 (internal citations and quotation marks omitted). In
Katz v. S.D. State Board of Medical and Osteopathic Examiners, 432
N.W.2d 274 (S.D. 1988), the court discussed substantive due process as
it relates to the medical profession:
When these laws regulating the medical profession are attacked,
substantive due process requires that the exercise of the police
power must not be unreasonable or unduly oppressive and that the
regulatory means employed by the legislature must have a real and
substantial relation to the objects sought to be attained. In
addition, the legislature, under the guise of protecting the public
health, may not arbitrarily interfere with a person's right to
pursue the medical profession or impose unreasonable restrictions
upon the practice of medicine.
Id. at 278-79 (internal citations omitted).
(167.) Collins, 503 U.S. at 126 (quoting Deshaney v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989)).
(168.) Jones v. Flowers, 547 U.S. 220, 223 (2006) (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
(169.) 424 U.S. 319, 335 (1976).
(170.) See Nguyen v. State Dep't of Health Med. Quality
Assurance Comm'n, 29 P.3d 689 (Wash. 2001) (applying the Mathews
test to a doctor whose license was revoked by the Medical Quality
Assurance Commission).
(171.) Wall v. Am. Optometric Ass'n, Inc., 379 F. Supp. 175,
184 (N.D. Ga. 1974), aff'd, 419 U.S. 888 (1974); see supra note 160
and accompanying text.
(172.) Physicians who become licensed after the passage of laws
like the MSEHPA probably would not have exactly the same property
interests in their licenses as compared to their counterparts who were
licensed prior to the new regulations. Members of the latter group would
expect their licenses to be subject to the police power of the state.
However, to the extent that the MSEHPA goes beyond the scope of
"police power," these physicians did not expect that their
property interest in their licenses would be subject to providing care
during an epidemic. The newly licensed physicians would have acquired
their property interest with an understanding that it was subject to the
emergency health provisions. Likewise, a state may require previously
licensed physicians to agree to provide care during an epidemic as a
condition of renewal of their licenses.
(173.) Hodel v. Va. Surface Mining & Reclamation Ass'n,
452 U.S. 264, 299-300 (1981) (quoting Ewing v. Mytinger &
Casselberry, Inc., 339 U.S. 594, 599 (1950)). See generally Mackey v.
Montrym, 443 U.S. 1, 17-18 (1979); Ewing, 339 U.S. at 599-600.
(174.) Hodel, 452 U.S. at 299, 303.
(175.) 542 U.S. 507, 537 (2004).
(176.) CAL. BUS. & PROF. CODE [section] 2227 (West 2007); N.Y.
PUB. HEALTH LAW [section] 230 (McKinney 2007); OHIO REV. CODE ANN.
[section][section] 4731.22, .23 (West 2007); TEX. Off. CODE ANN.
[section][section] 164.001-.206 (Vernon 2007).
(177.) CAL. Cir. PROC. CODE [section] 1094.5 (West 2007); N.Y. PUB.
HEALTH LAW [section] 230.19 (McKinney 2007); OHIO REV. CODE ANN.
[section] 119.12 (West 2007); TEX. OCC. CODE ANN. [section] 164.009
(Vernon 2007).
(178.) AMY R. SCHOFIELD & LINDA L. CHEZEM, CTR. FOR PUB. HEALTH
P'SHIPS, PUBLIC HEALTH LAW BENCH BOOK FOR INDIANA COURTS [section]
5 (2005), available at
http://www.ojp.usdoj.gov/BJA/pandemic/INBenchBook.pdf.
(179.) ADMIN. OFFICE OF THE COURTS, EPIDEMICS AND THE CALIFORNIA
COURTS (2006), available at
http://www.dhs.ca.gov/ps/dcdc/disb/pdf/Collaborative%20projects/FINAL%20
Disease%20Health%20Plan.pdf.
(180.) Under the MSEHPA, patients are provided with many procedural
due process protections. For example, the state cannot vaccinate people
during an emergency unless the state knows that the vaccine is not
"reasonably likely to lead to serious harm to the affected
individual." THE MODEL STATE EMERGENCY HEALTH POWERS ACT [section]
603(a)(2) (Ctr. for Law & the Public's Health 2001), available
at http://www.publichealthlaw.net/ MSEHPA/MSEHPA2.pdf. If the state
public health authority wants to quarantine a person for more than ten
days, the state has to demonstrate that "by a preponderance of the
evidence, isolation or quarantine is shown to be necessary to prevent or
limit the transmission of a contagious or possibly contagious disease to
others." Id. [section] 605(b)(5); see also Michelle A. Daubert,
Comment, Pandemic Fears and Contemporary Quarantine: Protecting Liberty
Through a Continuum of Due Process Rights, 54 BUFF. L. REV. 1299,
1349-53 (2007).
(181.) Gostin et al., supra note 1, at 116.
Ariel R. Schwartz, Law Clerk to the Honorable Kermit V. Lipez, U.S.
Court of Appeals for the First Circuit; J.D. 2007, Stanford Law School.
I would like to thank Professor Hank Greely, Professor Norman Spaulding,
and Nancy Leong for their generosity in providing me with feedback and
suggestions for this Note. I am grateful to my family for their support
and to Ethan Siller for his ideas and encouragement at every stage of
this project. Finally, I appreciate the efforts of the dedicated members
of the Stanford Law Review.