Can the TB Patient Sue the CDC?

cdc1.jpgThe WSJ blog points to this interesting update about the TB patient who was quarantined for having a highly-resistant strain of TB. I blogged about the case here and here. According to the news story, times aren’t very good from Andrew Speaker, the TB patient:

At National Jewish Medical and Research Center in Denver, where he was transferred from Grady, he received hate mail and death threats from people whom he said “turned on the news and saw this greedy, self-absorbed attorney.” At a congressional hearing, a representative referred to Speaker as a “walking biological weapon.” . . . .

Speaker was released from National Jewish on July 26, his treatment successfully completed. He takes 11 pills every morning at 8 a.m., supervised by public health officials who drop by on their way to work — a standard regimen he will follow for the next two years to make sure the TB has been fully eradicated. He’s in excellent health and has gone back to his previous routines, unmasked and unquarantined.

But his personal injury law practice is floundering, and his life is far from normal. His existing clients have stuck with him, but there have been no new clients since the ordeal began. The perception that he’s a selfish jerk who thought nothing of exposing others to a deadly disease lingers.

“The CDC told everyone that I only care about myself,” he said. “They made statements they knew were wrong. They intentionally went after my family and our character.” . . . .

His father’s practice has also suffered. Theodore A. Speaker, also a lawyer, has based his practice for 25 years on referrals from providers of prepaid legal services. Speaker said those companies stopped referring clients to his father after news of his TB broke because potential clients were afraid they’d catch TB if they came to Ted Speaker’s office, which he shared with his son.

Speaker is also being sued in Canada for $1.3 million by eight passengers on his flight from Prague to Montreal for potentially exposing them to TB plus pain and suffering. The brother of one passenger is also suing.

At the end of the article is this interesting tidbit:

Does Speaker have any plans to sue the CDC?

“They’re a federal agency. They have immunity,” he said in resignation. “It’s easier to think this guy is a jerk than that a government agency got together to intentionally misinform the public. That’s much harder to believe.”

What?

According to the news reports, Speaker’s name was disclosed by government medical officials (probably CDC officials trying to cover their behinds for screwing up so badly). Medical officials have legal and ethical duties to maintain confidentiality. There’s also a potential Bivens action for a violation of the constitutional right to information privacy. See Whalen v. Roe, 429 U.S. 589 (1977). Most circuits recognize the constitutional right to information privacy, and it is violated by unjustified disclosures of personal information, especially medical data. For example, in Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990), the court held that the police could be liable for disclosing to a person’s neighbor that the person was HIV positive. There are many other cases on point.

The short of it is that Speaker does have a case against the CDC if he can prove that CDC officials leaked his name and/or other medical information. It is clearly established that government officials have a duty of confidentiality of medical data under the constitutional right to information privacy in most circuits, so any qualified immunity claims would not bar liability (qualified immunity applies if the constitutional violation is not clearly established).

I sure think that there might be a case here.

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5 Responses

  1. Dissent says:

    I do not know what laws would apply to the anonymous “federal law enforcement official” who was supposedly the first person to name him to the AP reporter, but I’ve said previously that I think that the unnamed “medical official” breached medical privacy. As a health care professional, I was totally outraged by the disclosure of the patient’s name and think that at the very least, there should be an investigation and consequences of some kind.

    Since the case broke, I have not heard/read a single word about any actions taken by the CDC with respect to the disclosure of the patient’s name. Of course, they’ll probably say that they haven’t taken any disciplinary action against any employee because they do not know the AP reporter’s source.

    If Speaker were to sue the CDC, Dan, would he able to get the reporter to reveal the source’s name, or is this likely to wind up a mess with reporters shielding sources?

  2. Dissent,

    It depends. Speaker could subpoena the journalist who wrote the story. That journalist could assert the journalist privilege, but its strength depends upon the jurisdiction (journalist privilege law is a bit of a mess since the U.S. Supreme Court case on privilege is very ambiguous). In recent cases, however, courts have been willing to demand that journalists identify sources, especially when they are government officials. For example, under the law of the D.C. Circuit, plaintiffs can overcome the privilege if (1) disclosure goes “to the heart of” the case and (2) plaintiffs have exhausted “every reasonable alternative source of information.” Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981).

    For more about journalist privilege, see my post here.

  3. Dissent says:

    Thanks for the pointer, Dan — it was an interesting post. OK, let’s assume for the moment that Speaker can get these officials’ names and sues on the grounds you’ve outlined. I assume he’d sue for lost income, legal fees to defend against all the people suing him because the defendants revealed his identity, emotional anguish due to death threats, etc. etc., right? Unlike a lot of cases, he probably can show actual financial harm and consequences of this privacy violation.

    Even though I think Speaker would be right to sue and should prevail, what worries me about this case a bit is that the public does want this information (e.g., to know who is on the loose with treatment-resistant TB)and views it as being “in the public interest.” Just as we see knee-jerk reactions after a tragedy like VA Tech where everyone starts trying to whittle away at privacy in the name of “balancing” privacy with public safety.

    So if Speaker were to sue and it went to a jury, I fear that a jury might ignore the law and give a free pass to those who breached his privacy because the defense would play on the “wouldn’t you want to know if….?” emotional aspect. Hopefully, the case would settle before it gets to a jury trial.

  4. I could be wrong about my chronology, but I remember hearing about “the TB patient” giving interviews from his hospital bed and talking about his medical condition and his experiences . . . well before his name was reported in the press. Moreover, I suspect that many people’s negative impressions of him have to do with what a jerk he appeared to be in those interviews, rather than with anything the CDC said about him. Without expressing any opinion on the legal conclusions, I’d just say that he has some bad facts to deal with in any potential lawsuit.

  5. Miriam Cherry says:

    I see the point you are trying to make about privacy, Dan, but these are very bad facts indeed.