Liability of infecting another: Who pays and when, if ever?

© The Medical-Legal News, 2007

• The Gist: Case law pertaining to infecting another person with a deadly disease is evolving. 

By Dan Clifford, publisher

Persons infected with potentially fatal illnesses carry a great responsibility with them, along with their virulent bugs, but the legalities of any willful social contact are not exactly clear.

E. Patrick Moores, a Lexington, Ky. attorney with 28 years of experience in insurance defense, offered some speculation on any liability that Andrew Speaker, an Atlanta attorney who carried TB germs on airplanes to Europe and back, might face.

“I would say that the legality of this is a whole area yet to be explored. The World Heath Organization declared TB eradicated about 15 or 20 years ago, and now all of a sudden it is coming back. I think it’s a very gray issue, legally.”

When asked if passengers on the airplane with Speaker had standing to sue, Moores said, “absolutely.”

As to any source of insurance for Speaker in the event of his being sued by airplane passengers or others, Moores notes, “I don’t think that for a communicable disease a person’s homeowner’s policy will defend him. Even though you do have liability coverage, I think that (Speaker’s actions) probably would be an intentional act. I am not certain that homeowners would protect someone in this. I think that would come under some exclusion, probably.”

“This (liability of communicable disease) is something that’s still up in the air with HIV,” Moores added. “I think if a person goes out and intentionally infects someone, he’s going to be liable. If he is not intentionally trying to communicate his illness to other people, then I have doubts that he would be liable.”

When asked about Speaker’s frame of mind as to intention, Moores said, “I think he intentionally did it. I think anybody who knew that he had TB knows that it’s a very communicable disease. And I think the better part of reason is that he should not have gone.”

Moores noted that it is not everyday that the Centers for Disease Control tells someone to stay home.

“I think he’s looking at real bad legal exposure,” Moores said.

Maureen Orr, a legal nurse consultant and former certified public health nurse in Jacksonville, Fla., highlighted some pragmatic issues and possible defenses, “With some strains of TB, it takes a long time to completely identify them. From what I learned in a New York Times story, the CDC had not had time to completely identify the actual strain of TB carried by Speaker, which is why they informed him that they ‘preferred’ that he not travel. There is no way this can be rushed. It is a matter of the cells growing out.”

Orr added, “To me, the legal issues are not against the physicians at the CDC for letting him fly.” Orr also noted that airplane passengers would have anxiety and costs related to the possibility of being infected, and cited worldwide issues of endangerment to health when the CDC failed to inform the WHO and health entities in other countries, especially Italy, in a timely manner. •