Doubtful duty: Physicians' legal obligation to treat during an epidemic

Stanford Law Review

Volumn 60, Issue 2, 2007, Pages 657-694

  Schwartz, Ariel R ^a  

^a US Court of Appeals ^*

Author keywords

[No Author keywords available]

Indexed keywords

COMMUNICABLE DISEASE; DISABLED PERSON; DISEASE TRANSMISSION; EMERGENCY HEALTH SERVICE; EPIDEMIC; ETHICS; GOVERNMENT; HEALTH CARE PLANNING; HISTORY; HUMAN; LEGAL ASPECT; MEDICAL ETHICS; MEDICAL PROFESSION; MEDICAL SOCIETY; NONBIOLOGICAL MODEL; PATIENT ABANDONMENT; PHYSICIAN ATTITUDE; REVIEW; RISK; SOCIAL BEHAVIOR; UNITED STATES;

AMERICAN MEDICAL ASSOCIATION; CODES OF ETHICS; COMMUNICABLE DISEASES; DISABLED PERSONS; DISEASE OUTBREAKS; DISEASE TRANSMISSION, PATIENT-TO-PROFESSIONAL; EMERGENCY SERVICE, HOSPITAL; ETHICS, MEDICAL; HISTORY, 20TH CENTURY; HUMANS; MODELS, ORGANIZATIONAL; PHYSICIAN'S ROLE; REFUSAL TO TREAT; RISK; SOCIAL RESPONSIBILITY; SPECIALISM; STATE GOVERNMENT; STATE HEALTH PLANS; UNITED STATES;

EID: 38749087659     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (223)

1. Lawrence O. Gostin, Scott Burns & 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.
4. 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_ 200710 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.
5. 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/oes310000.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.
6. 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).
7. Id. at 1924.
8. Id. at 1925.
9. Id.
10. Id.
11. See Samuel J. Huber & Matthew K. Wynia, When Pestilence Prevails: Physician Responsibilities in Epidemics, 4 AM. J. OF BIOETHICS W5, W6 (2004).
12. Zuger & Miles, supra note 5, at 1925.
13. Huber & Wynia, supra note 10, at W6.
14. 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).
15. Zuger & Miles, supra note 5, at 1926.
16. Id. at 1924-25.
17. Huber & Wynia, supra note 10, at W6.
18. JOHN BELL & ISAAC HAYS, CODE OF ETHICS (1847),
19. reprinted in THE AMERICAN MEDICAL ETHICS REVOLUTION 324 app. at 333 (Robert B. Baker et al. eds., 1999).
20. Robert B. Baker, The American Medical Ethics Revolution, in THE AMERICAN MEDICAL ETHICS REVOLUTION, supra note 17, at 17, 17.
21. Id. at 18.
22. 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.
23. Mark Siegler, Medical Ethics as a Medical Matter, in THE AMERICAN MEDICAL ETHICS REVOLUTION, supra note 17, at 171.
24. See Chalmers C. Clark, In Harm's Way: AMA Physicians and the Duty to Treat, 30 J. MED. & PHIL. 65, 66-67 (2005).
25. 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.
26. 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.
27. Huber & Wynia, supra note 10, at W5 (footnote omitted).
28. See id. at W7; Zuger & Miles, supra note 5, at 1926.
29. See Huber & Wynia, supra note 10, at W7;
30. Zuger & Miles, supra note 5, at 1926.
31. 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;
32. Huber & Wynia, supra note 10, at W7.
33. Huber & Wynia, supra note 10, at W7.
34. 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).
35. See Gostin et al., supra note 1, at 97.
36. COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. 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.
37. COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS'N, CEJA REPORT 5-1-01: A DECLARATION OF PROFESSIONAL RESPONSIBILITY 3 (2001), available at http://www.amaassn.org/ amal/pub/upload7mm/369/ceja_5i01.pdf.
38. Id. at 1.
39. Id.
40. Rhode Island Dep't of Health, Board of Licensure and Discipline, http://www.health.ri.gov/hsr/bmld.
41. 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);
42. see also Shirley Svorny, Licensing Doctors: Do Economists Agree?, 1 ECON. J. WATCH 279, 284 (2004).
43. See Noether, supra note 35, at 233;
44. Svorny, supra note 35, at 280-81.
45. See Svorny, supra note 35, at 285-89;
46. 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).
47. Noether, supra note 3 5.
48. See Michael Moran, The Health Professions in International Perspective, in REGULATING THE HEALTH PROFESSIONS 19 (Judith Allsop ed., 2003).
49. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 32 (4th ed. 1971).
50. John A. Siliciano, Wealth, Equity, and the Unitary Medical Malpractice Standard, 11 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.
51. Id. at 252-53.
52. See M. Gregg Bloche, The Supreme Court and the Purposes of Medicine, 354 NEW ENG. J. MED. 993 (2006).
53. 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)).
54. 530 U.S. 914, 935 (2000) (citation omitted).
55. 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).
56. 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.
57. Doran Smolkin, HIV Infection, Risk Taking, and the Duty to Treat, 22 J. MED. & PHIL. 55, 56 (1997) (citation omitted).
58. 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.") .
59. Sherry L. Grace et al., The Occupational and Psychosocial Impact of SARS on Academic Physicians in Three Affected Hospitals, 46 PSYCHOSOMATICS 385, 389 (2005).
60. Id. at 390.
61. See Am. Bar Ass'n AIDS Coordinating Comm., supra note 48.
62. See Grace et al., supra note 49, at 389.
63. 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.
64. 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).
65. See Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 (2000).
66. 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").
67. 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.
68. 42 U.S.C. § 12182(a) (2000).
69. 42 U.S.C. § 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. § 12102(2)(B)-(C) (2000).
70. 42 U.S.C. § 12181(7)(F) (2000).
71. Sharrow v. Bailey, 910 F. Supp. 187, 191 (M.D. Pa. 1995).
72. 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. § 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. §12201(a) (2000). Courts have taken this part to mean that the ADA and Rehabilitation Act are "interpreted substantially identically." Lesley v. Chie, 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.").
73. 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.")
74. 42 U.S.C. §12102(2)(A) (2000).
75. 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).
76. 42 U.S.C. §12182(b)(3) (2000) (emphasis added).
77. Bragdon, 524 U.S. at 649 (citing Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987)).
78. Id.
79. 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.
80. C.F.R. §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).
81. Bragdon, 524 U.S. at 649.
82. Id.
83. Id.
84. 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.
85. Id.
86. Id. at 2861-62.
87. Bragdon, 524 U.S. at 651. Elaborating on this point with regard to HIV, the Court noted: "The Guidelines set out CDCs 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.
88. Id.
89. Masur et al., supra note 73, at 2862.
90. Id.
91. Ezekiel J. Emanuel, Do Physicians Have an Obligation to Treat Patients with AIDS?, 318 NEW ENG. J. MED. 1686, 1688 (1988).
92. Bragdon, 524 U.S. at 649.
93. Id.
94. See supra note 69 and accompanying text.
95. 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.
96. Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987) (internal citations omitted).
97. See generally Scott Burris, 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.
98. Lawrence O. Gostin, The AIDS Litigation Project, 263 JAMA 2086, 2089 (1990).
99. 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.
100. Lesley v. Chie, 250 F.3d 47, 53-54 (1st Cir. 2001).
101. H.R. REP. NO. 101-485, pt. 2, at 106 (1990); see also Lesley, 250 F.3d at 54.
102. 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).
103. 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 to prescribe and monitor AZT be immediately implemented by any licensed obstetrician, including community obstetricians such as Dr. Chic" 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.
104. Lesley, 250 F.3d at 49.
105. 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.
106. Id. at 57.
107. Id. at 57-59.
108. 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.
109. Webber & Gostin, supra note 54, at 287.
110. See id. at 288, 290.
111. N.Y. EXEC. LAW § 292(21) (McKinney 2006).
112. NJ. STAT. ANN. § 10:5-5(q) (West 2006).
113. IOWA CODE § 216.2(5) (2005).
114. Webber & Gostin, supra note 54, at 303.
115. See, e.g., Payton v. Weaver, 182 Cal. Rptr. 225, 229 (Cal. Ct. App. 1982).
116. Accord id.
117. 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).
118. 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).
119. 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).
120. 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).
121. Id.
122. Id.
123. 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).
124. If in fact effective treatment options were available, the physician might be subject to a medical malpractice suit.
125. 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).
126. 42 U.S.C. § 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).
127. HALL, supra note 113, at 113.
128. 42 U.S.C. §1395dd(d)(1) (2000).
129. Hiser v. Randolph, 617 P.2d 774 (Ariz. Ct. App. 1980); HALL, supra note 113, at 113.
130. Burditt, 934 F.2d at 1376.
131. 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).
132. 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.
133. Hillary R. AhIe, 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).
134. 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.
135. 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).
136. Id. Specialty boards are non-govemmental 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.
137. Id.
138. COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS'N, CEJA REPORT 5-1-01 : A DECLARATION OF PROFESSIONAL RESPONSIBILITY 3 (2001).
139. 42 U.S.C. § 201 (2000).
140. 42 U.S.C. § 264(a) (2000).
141. Id. § 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.
142. U.S. DEP'T OF HEALTH & HUMAN SERVS., HHS PANDEMIC INFLUENZA PLAN 1 (2005), available at http://www.hhs.gov/pandemicflu/plan/pdf/ HHSPandemicInfluenza Plan.pdf.
143. Id. at 34-39.
144. 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).
145. See generally U.S. DEP'T OF HEALTH & HUMAN SERVS., supra note 130.
146. Ceci Connolly, U.S. Plan for Flu Pandemic Revealed; Multi-Agency Proposal Awaits Bush's Approval, WASH. POST, Apr. 16, 2006, at A1.
147. 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_TR 181.pdf.
148. Id. at 5.
149. Id. at 6.
150. Id.
151. 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.
152. 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).
153. Id. at 622.
154. Id. at 625.
155. THE MODEL STATE EMERGENCY HEALTH POWERS ACT § 401 (Ctr. for Law & the Public's Health 2001), available at http://www.publichealthlaw.net/ MSEHPA/MSEHPA2.pdf.
156. Id. § 403(a)(1).
157. 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.neMSEHPA/MSEHPA%20Leg%20Activity.pdf.
158. Id.
159. George J. Annas, Bioterrorism, Public Health, and Civil Liberties, 346 NEW ENG. J. MED. 1337 (2002);
160. 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).
161. THE MODEL STATE EMERGENCY HEALTH POWERS ACT § 608(a) (Ctr. for Law & the Public's Health 2001), available at http://www.publichealthlaw.net/ MSEHPA/ MSEHPA2.pdf.
162. 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.
163. 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;
164. N.Y. STATE DEP'T OF HEALTH, PANDEMIC INFLUENZA PLAN § 11 (2006), available at http://www.health.state.ny.us/diseases/communicable/influenza/pandemic/docs/ pandemic_influenza_plan.pdf;
165. 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.
166. THE MODEL STATE EMERGENCY HEALTH POWERS ACT § 401 (Ctr. for Law & the Public's Health 2001), available at http://www.publichealthlaw.net/ MSEHPA/ MSEHPA2.pdf.
167. Id. § 104(m)(2)(iii).
168. See U.S. CONST. amend. XIV, § 1.
169. 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 § 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.
170. 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.
171. Cent. State Univ. v. Am. Ass'n of Univ. Professors, 526 U.S. 124, 128 (1999)
172. (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).
173. 408 U.S. 564, 577 (1972).
174. Schwäre 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).
175. 402 U.S. 535, 539 (1971)
176. (citing Goldberg v. Kelly, 397 U.S. 254 (1970);
177. 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).
178. Yeargin v. Hamilton MemT Hosp., 171 S.E.2d. 136, 139 (Ga. 1969)
179. (quoting Hughes v. State Bd. of Exam'rs, 134 S.E. 42, 46-47 (Ga. 1926)).
180. Wall v. Am. Optometrie Ass'n, Inc., 379 F. Supp. 175, 184 (N.D. Ga. 1974), aff'd, 419 U.S. 888 (1974) (internal quotations omitted).
181. Khan v. State Bd. of Auctioneer Exam'rs, 842 A.2d 936, 945 (Pa. 2004)
182. (quoting Soja v. Pa. State Police, 455 A.2d 613, 615 (Pa. 1982)).
183. Devous v. Wyo. State Bd. of Med. Exam'rs, 845 P.2d 408, 415 (Wyo. 1993).
184. Lambert v. Yellowley, 272 U.S. 581, 596 (1926).
185. See Washington v. Glucksberg, 521 U.S. 702 (1997);
186. 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.").
187. Meier v. Anderson, 692 F. Supp. 546, 549 (E.D. Pa. 1988),
188. aff'd, 869 F.2d 590 (3d Cir. 1989).
189. Collins, 503 U.S. at 127, 128;
190. 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
191. Id. at 845-46
192. (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.
193. Id. at 278-79 (internal citations omitted).
194. Collins, 503 U.S. at 126
195. (quoting Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989)).
196. Jones v. Flowers, 547 U.S. 220, 223 (2006)
197. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
198. 424 U.S. 319,335(1976).
199. 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).
200. Wall v. Am. Optometrie Ass'n, Inc., 379 F. Supp. 175, 184 (N.D. Ga. 1974), aff'd, 419 U.S. 888 (1974);
201. see supra note 160 and accompanying text.
202. 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.
203. Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 299-300 (1981)
204. (quoting Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)).
205. See generally Mackey v. Montrym, 443 U.S. 1, 17-18 (1979);
206. Ewing, 339 U.S. at 599-600.
207. Hodel, 452 U.S. at 299, 303.
208. 542 U.S. 507, 537 (2004).
209. CAL. BUS. & PROF. CODE § 2227 (West 2007);
210. N.Y. PUB. HEALTH LAW §230 (McKinney 2007);
211. OHIO REV. CODE ANN. §§ 4731.22, .23 (West 2007);
212. TEX. OCC. CODE ANN. §§ 164.001-.206 (Vernon 2007).
213. CAL. CIV. PROC. CODE § 1094.5 (West 2007);
214. N.Y. PUB. HEALTH LAW § 230.19
215. (McKinney 2007);
216. OHIO REV. CODE ANN. § 119.12 (West 2007);
217. TEX. OCC. CODE ANN. § 164.009 (Vernon 2007).
218. AMY R. SCHOFIELD & LINDA L. CHEZEM, CTR. FOR PUB. HEALTH P'SHIPS, PUBLIC HEALTH LAW BENCH BOOK FOR INDIANA COURTS § 5 (2005), available at http://www.ojp.usdoj.gov/BJA/pandemic/INBenchBook.pdf.
219. 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.
220. 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 §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."
221. Id. § 605(b)(5);
222. 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).
223. Gostin et al., supra note 1, at 116.