As the medical community fights to contain Ebola, the virus is also challenging another field: the law. Today on Think, Krys Boyd asked a panel of attorneys about some of the legal questions surrounding Ebola.
Nathan Cortez says there’s a good reason why these questions are tough to answer.
“We’re kind of flying blind on a lot of these legal issues," he said. "You often hear, ‘This is not our first rodeo.’ This actually is our first rodeo.”
Cortez is an associate professor of law at SMU who specializes in health care and biotechnology.
“What’s interesting looking at federal and state law is how frequently the statutes use the words ‘reasonable’ and ‘appropriate’ and ‘necessary.’ And my takeaway from that is that the statutes are really trying to give public health authorities a lot of discretion to do as they see fit," he said.
That’s what allows public health officials to enforce quarantines and check the temperatures of passengers at airports.
“The more lethal the threat, the higher the level of power the governmental officials have to try to contain it," said Laura Reilly O’Hara, a partner at Strasburger and Price LLP specializing in the healthcare industry. “You balance the liberties of a few over the good of the many. And that’s something we’re all going to have to feel our way through as this unfolds.”
There are a few precedents, such as patient privacy. Cortez says the law allows for public health officials and law enforcement to know the identity of someone who could spread disease. But then the flow of information tightens.
“You read these statutes, you don’t see any exceptions for newsworthiness, or for someone whose medical information you want because you live down the street or your child goes to school near that person,” he said.
And when it comes to malpractice, O’Hara says the question a suit would have to answer is whether the care provided is considered reasonable.
“Well when you’re looking at a disease that has never been diagnosed on this continent," she says, "Who’s to say what the reasonable care is in that context?”
And in the case of an emergency room, O’Hara says prosecutors would have to show that a doctor or nurse intentionally mistreated a patient.
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