Can the TB Patient Sue the CDC?

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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.