Public Health Law Map - Beta 5.7 I. INTRODUCTION TO PUBLIC HEALTH LAW 1 II. ORGANIZATION OF THE LEGAL SYSTEM 6 III. TORT CLAIMS AGAINST PRIVATE PARTIES 20 IV. CLAIMS AGAINST THE GOVERNMENT 57 V. CRIMINAL LAW 97 VI. THE LITIGATION PROCESS 138 VII. ADMINISTRATIVE LAW PRIMER 175 VIII. WORKING WITH LAWYERS 190 IX. THE PHYSICIAN–PATIENT RELATIONSHIP 216 X. CONSENT TO MEDICAL TREATMENT 273 XI. MEDICAL PRIVACY 343 XII. MEDICAL RECORDS 362 XIII. TEAM CARE AND MANAGED CARE 381 XIV. PEER REVIEW AND DESELECTION 434 XV. PUBLIC HEALTH AND COMMUNICABLE DISEASE CONTROL 459 XVI. ENVIRONMENTAL HEALTH 497 XVII. FAMILY PLANNING, ADOPTION, AND SURROGACY 513 XVIII. OBSTETRICS 560 XIX. OCCUPATIONAL MEDICINE AND DISABILITY LAW 608 XX. INSTITUTIONAL MEDICINE 674 XXI. GLOSSARY 697 Public Health Law Map - Beta 5.7 The Public Health Law Map is an ongoing project to bring public health law information to public health practitioners, their lawyers, and students of public health, and the general public. It is being done as an online resource so that it can be updated and to make as widely available as possible. It is not a substitute for legal advice, and since state law varies, it is not a specific guide for any state. I. Introduction to Public Health Law Public health has become a broad and flexible concept that encompasses both the traditional definition of practices that benefit the health of the community and personal health services, such as hypertension treatment. Legally, however, the basis for traditional public health and personal health services are very different. For example, although the state has broad powers to order vaccination to prevent the spread of a dangerous communicable disease, the state has limited power to require competent adults to undergo medical treatment for personal illness such as hypertension. The core of public health law is coercive action under state authority, the police power. In the best of circumstances, this authority may be needed only to encourage educational efforts. At other times, however, public health authorities must seize property, close businesses, destroy animals, or involuntarily treat or even lock away individuals. Such powers are rooted in earlier times, when the fear of pestilential disease was both powerful and well founded. As communicable diseases such as smallpox, tuberculosis, and polio were brought under control in the 1960s, the public and even some public health experts began to believe that there was no longer a need for coercive public health measures. The terrorist attack on the United States on September 11, 2001, followed shortly by anthrax-laden letters sent to public figures, brought bioterrorism to the public's consciousness, reviving ancient fears of pestilence. The sequella of Hurricane Katrina and growing fears of pandemic flu have raised questions about the capabilities of the public health infrastructure and the potential reach of public health laws in an emergency. These fears have forced a rethinking of public health law authority. A. The History of Public Health Authority Sanitary laws were the first public health measures. An early record of these laws is in Leviticus 11:16. The Romans developed the discipline of sanitary engineering— building water works and sewers. The next advance in public health was the quarantine of disease-carrying ships and their passengers, instituted in Eurpope in response to the diseases brought back by the Crusaders. The word quarantine derives from quadraginta, meaning “forty.” It was first used between 1377 and 1403 when Venice and the other chief maritime cities of the Mediterranean adopted and enforced a forty- day detention for all vessels entering their ports. [Bolduan CF, Bolduan NW. Public Health and Hygiene: A Student’s Manual. 3rd, rev. ed. Philadelphia: W.B. Saunders; 1942.] The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The American colonies adopted the English laws on the control of diseases. When the Constitution was written, public health power was left to the states, because it was considered fundamental to the state’s police power: It is a well-recognized principle that it is one of the first duties of a state to take all necessary steps for the promotion and protection of the health and comfort of its inhabitants. The preservation of the public health is universally conceded to be one of the duties devolving upon the state as a sovereignty, and whatever reasonably tends to preserve the public health is a subject upon which the legislature, within its police power, may take action. [Application of Halko, 246 Cal.App.2d 553, 54 Cal.Rptr. 661 (Cal.App. 2 Dist. Nov 18, 1966)] Soon after the Constitution was ratified, the states were forced to exercise their police power to combat an epidemic of yellow fever that raged in New York and Philadelphia. The flavor of that period was later captured in an argument before the Supreme Court: For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. [Smith v. Turner, 48 U.S. (7 How.) 283, 340–341 (1849)] The extreme nature of the actions, including isolating the federal government (sitting in Philadelphia at the time), was considered an appropriate response to the threat of yellow fever. The terrifying nature of these early epidemics predisposed the courts to grant public health authorities a free hand in their attempts to prevent the spread of disease: Every state has acknowledged power to pass, and enforce quarantine, health, and inspection laws, to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power under the Constitution, save by requiring the consent of Congress to the imposition of duties on exports and imports, and their payment into the treasury of the United States. [Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 616 2 (1840)] Few cases have challenged the constitutionality of state actions taken to protect citizens from a communicable disease. The only successful attacks on such exercises of state police power have been based on federal preemption of state laws that restricted interstate commerce or on laws that were mere shams for racial discrimination. Yet even interference with interstate commerce is not always fatal to health regulations. If a state regulation is substantially related to health and safety, the Supreme Court will uphold it. This is true even if the regulation interferes with interstate commerce, such as would result from a cordon sanitaria in which all travel is forbidden. From vaccinations to quarantines, laws enacted to protect society have been upheld even when they force individuals to sacrifice liberty and privacy. B. Legal Standards for Public Health Authority As courts have reviewed the constitutionality of laws that ostensibly protect the public health and safety, they have developed consistent standards for defining an acceptable exercise of public health authority. The courts have allowed substantial restrictions on individual liberty as part of public health laws that seek to prevent future harm rather than to punish past actions. If a court finds that a law is directed at prevention rather than punishment, it will allow the state to do the following: 1. Rely on expert decision makers. 2. Provide for judicial review through habeas corpus proceedings rather than through prerestriction hearings. 3. Use a scientific, rather than a criminal law, standard of proof. Although a state’s power to protect the public health is broad, it is restricted to preventing future harm. The state may not punish a person under its public health police powers. Administrative deprivations of liberty are tolerated only if their purpose is not punitive. The distinction between allowable restrictions and forbidden punishment is sometimes finely drawn. For example, being put in the community pesthouse was seldom a pleasant prospect, and with the closing of pesthouses, public health restrictions have frequently been carried out in prisons and jails. In one such case, the court rejected the petitioner’s claim that he was being punished without due process, concluding, “While it is true that physical facilities constituting part of the penitentiary equipment are utilized, interned persons are in no sense confined in the penitentiary, and are not subject to the peculiar obloquy which attends such confinement.” [Ex parte McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919).] 1. Expert Decision Makers Public health jurisprudence is based on a deference to scientific decision making. This deference may be expressed by incorporating scientific standards into legislation or by delegating the right to make public health decisions to boards of 3 health or individual health officers who are skilled in the science of public health. This deference is illustrated in the best known of the traditional public health cases, Jacobson v.