Doubtful Duty: Physicians' Legal Obligation to Treat during an Epidemic
Schwartz, Ariel R., Stanford Law Review
INTRODUCTION I. HISTORICAL ORIGINS A. Emergence of the American Medical Association B. Relationship Between Law and Ethics C. Reluctance to Treat II. IN THE ABSENCE OF AN "EMERGENCY" A. Americans with Disabilities Act B. Direct Threat C. Specialists D. State Laws E. Emergency Medical Treatment and Active Labor Act III. EMERGENCY LEGAL FRAMEWORK A. Shortcomings in Existing State Emergency Plans B. Model State Emergency Health Powers Act C. Proposals for Procedural Safeguards CONCLUSION
Over the course of the twentieth century, the medical community "appeared to be winning the battle against communicable diseases" with antibiotics and vaccines. (1) Yet, in the last few decades, new infectious diseases and conditions such as Human Immunodeficiency Virus (HIV), Acquired Immunodeficiency Syndrome (AIDS), Severe Acute Respiratory Syndrome (SARS), Ebola, and avian influenza (most notably virus H5N1) have created grave new threats. Although HIV/AIDS is not particularly contagious if appropriate precautions are taken, (2) avian influenza, SARS, and Ebola are believed to be highly contagious, fatal, and sometimes without mechanisms to prevent transmission. (3)
With the threat of an epidemic looming, the question of physicians' legal duties during an epidemic of a highly infectious disease becomes critical. While there is a rich body of literature in medical journals concerning physicians' ethical obligations in epidemics and extensive case law regarding the question of physicians' legal duties to HIV/AIDS patients under the Americans with Disabilities Act of 1990 (ADA), few scholars or policymakers have discussed the appropriate legal frameworks for addressing physicians' duties to treat highly infectious diseases such as avian influenza, Ebola, and SARS. That this issue has received minimal attention from legal scholars and policymakers is troublesome since physicians will probably be needed to help control an epidemic. The current failure to address the issue of whether and to what extent physicians have a duty to treat people with fatal, highly infectious diseases could have devastating consequences during an epidemic.
This Note focuses on the impact of an epidemic on physicians because, as compared with other healthcare workers such as nurses, physicians are the most publicly visible and tend to have the most professional autonomy. Moreover, physicians as a group have tremendous influence over the development of local, state, and federal healthcare policy. However, a focus on physicians in no way suggests that they are the only group of healthcare professionals with an important stake in policies regarding duties to treat during an epidemic. The concerns of other healthcare professionals tend to be coextensive with the concerns of physicians. The healthcare industry employs millions of Americans, many of whom will be affected by the creation of legal frameworks compelling delivery of care. (4) Greater clarity regarding physicians' responsibilities during an epidemic will help inform a discussion about the interests of other healthcare professionals.
By addressing the structural limitations of existing legal frameworks pertaining to physicians' duties and by discussing ways in which states can create emergency legal frameworks that compel physicians to provide treatment when appropriate, this Note begins to fill a void in the literature regarding physicians' obligations during an epidemic. Part I considers the willingness of physicians to treat during an epidemic by examining physicians' past attitudes towards epidemics, and the role the American Medical Association (AMA) has played in shaping the regulation of the medical profession.
Part II analyzes the inapplicability of existing statutory frameworks in an epidemic context. In particular, this Part examines why the ADA and similar state laws, which prohibit physicians from refusing treatment to patients with HIV/AIDS because they are seropositive for HIV, have limited applicability for determining whether physicians are required to treat patients with highly infectious diseases. …