Doubtful duty: physicians' legal obligation to treat during an epidemic.

• Author: Schwartz, Ariel R.

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 INTRODUCTION

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. This Part also demonstrates that while hospitals have a legal obligation to treat people with infectious diseases and doctors have contractual obligations to hospitals, the care available from this set of relationships is unlikely to be sufficient during an epidemic.

Part III discusses the role that states and governors will play in managing an epidemic given current legislation and directives from the Department of Health and Human Services (HHS). Moreover, this Part addresses the contributions of the drafters of the Model State Emergency Heath Powers Act (MSEHPA) in proposing a system that recognizes the need for governors to be able to declare a state of emergency during an epidemic and to require physicians to provide care as a condition of their professional licensure. Finally, Part III argues that the primary shortcoming of the MSEHPA, as it pertains to physicians, is that it fails to recognize physicians' property interests in their licenses and to provide them with the process they are constitutionally due.

This Note acknowledges that the degree of risk physicians should be required to confront during an epidemic as a condition of their licensure is hardly clear. Of course, uncertainty regarding what type of epidemic might transpire and how many people would be implicated greatly contributes to the challenge of establishing what role physicians should play. As evidenced by the muddle of laws that tangentially address physicians' obligations to treat people with highly infectious diseases, it is impossible to create a bright-line test for determining what exactly physicians should and should not be required to do during an epidemic. Therefore, during an epidemic, it would be appropriate to give the governor the opportunity to declare a state of emergency and to allow her, after great consideration, to assess whether and to what extent physicians should be required to provide treatment to patients with highly infectious diseases. Yet, this power of the governor should not be unbridled. Only by relying on traditional due process analysis can we create a system in which physicians provide appropriate care to patients during an epidemic.

1. HISTORICAL ORIGINS

   The current lack of clarity regarding the legal standard that governs physicians' duties during an epidemic is in part a reflection of the persistent divisions among physicians concerning appropriate professional conduct. The question of whether and to what extent physicians have an ethical duty to treat patients during an epidemic has a long pedigree. Scholarship on the history of medical ethics reveals that the medical community has never come to a consensus on the nature and scope of its responsibilities during an epidemic. (5) Physicians' interpretations of their professional responsibilities are relevant for understanding their legal duties because the medical profession in the United States exerts tremendous influence over the regulation of the profession.

   1. Emergence of the American Medical Association

      Since the mid-1980s, medical historians have accepted the Zuger-Miles hypothesis that prior to the twentieth century there was no "strong or consistent" tradition of physicians rendering care in epidemics due to a sense of professional responsibility. (6) According to the Zuger-Miles hypothesis, physicians have tended to act according to their own individual predilections. For example, medieval doctors fled Venice in the fourteenth and fifteenth centuries to avoid becoming infected with the black plague, and physicians in the seventeenth century left London to escape the bubonic plague. (7) In Philadelphia, during the yellow fever outbreak of 1793, some American physicians' responded as their European predecessors had. (8) For example, three of the most famous doctors in Philadelphia went to the countryside to try to avoid contact with yellow fever. (9)

      Yet, not all physicians fled disease-ridden cities. (10) During the yellow fever outbreak in Philadelphia, most physicians probably stayed in the city. (11) Some stayed to tend to the ill out of a feeling of religious obligation. (12) Others, dubbed "plague doctors," provided care in exchange for monetary incentives. (13) Another group of physicians was motivated by a sense of contractual duty to their patients. (14) Since writers from the medieval period to the nineteenth century derided physicians who fled epidemics for their "avarice and cowardice," (15) perhaps some physicians stayed to avoid censure by the broader community.

      In response to the multitude of physicians' reactions during epidemics, the AMA, founded in 1847, sought to codify expectations for physicians' behavior. The AMA's first Code of Ethics was groundbreaking in part because it "served formally to enshrine the potential for professional obligations, distinct from matters of personal choice, charity, or religion." (16) The Code stated: "[W]hen pestilence prevails, it is [physicians'] duty to face the danger, and to continue their labors for the alleviation of the suffering, even at the jeopardy of their own lives." (17)

      The impetus for trying to codify expectations in the Code is highly contested. Some historians view the Code of Ethics as an example of "public relations exercises designed to pacify the public and to gull legislators into supporting orthodox medicine's monopolizing proclivities." (18) Others view the original Code as articulating a "radical reformist vision of American medicine" that sought to protect the public from unorthodox, uneducated practitioners. (19)

      In either case, once codified, the AMA's standard became a touchstone in the debate about professional ethics and has facilitated a certain conception of professional obligation among physicians and the public at large. (20) Although only a quarter of physicians are members of the Association, the AMA's...