Michael H. Leroy, Pox Americana? Vaccinating More Emergency Doctors for Smallpox: a Law and Economics Approach to Work Conditions

• Publication year: 2005

POX AMERICANA? VACCINATING MORE EMERGENCY DOCTORS FOR SMALLPOX: A LAW AND ECONOMICS APPROACH TO WORK CONDITIONS

Michael H. LeRoy^*

INTRODUCTION .............................................................................................. 600

A. Statement of Public Policy Issue ................................................ 600

B. Organization of Article ............................................................... 603

I. THE EARLY ROLE OF PHYSICIANS IN SMALLPOX OUTBREAKS: GOVERNMENT EMPLOYMENT OF DOCTORS AS INDEPENDENT CONTRACTORS .................................................................................... 605

II. EMPLOYMENT REGULATIONS FOR PHYSICIANS IN MATTERS OF

SPECIAL RISKS .................................................................................... 610

A. License Revocation and Suspension ........................................... 610

B. Protective Federal Regulation: Encouragement Policies To

Vaccinate for Hepatitis-B and Smallpox .................................... 617

III. THE SWINE FLU ACT OF 1976: PHYSICIANS PARTICIPATE IN A MASS VACCINATION PROGRAM IN EXCHANGE FOR FEDERAL TORT IMMUNITY ........................................................................................... 624

A. Crisis and Fear of Pandemic Spur Congress To Enact the

Swine Flu Act .............................................................................. 624

B. Lessons from the Swine Flu Act for the National Smallpox

Immunization Program ............................................................... 627

IV. A LAW AND ECONOMICS APPROACH TO INCREASE SMALLPOX

VACCINATIONS AMONG EMERGENCY DOCTORS ................................ 628

A. A Law and Economics Idea To Recruit Emergency Doctors to the National Smallpox Immunization Program .......................... 628

B. Physicians Confront Malpractice Liability ................................ 629

C. State Legislation Addressing the Malpractice Problem ............. 632

D. Federal Legislation Addressing the Malpractice Problem ........ 635

E. Linking Federal Approaches to Smallpox Preparedness and

Medical Malpractice Relief ........................................................ 635

CONCLUSION .................................................................................................. 637

ABSTRACT

Experts and government agencies believe that a smallpox attack against the United States is possible. Dark Winter-a simulation run in June 2001 by national security groups-concluded that a single smallpox attack would result in a viral holocaust. This is because Americans have no immunity to this disease. Smallpox has no cure and a 30% mortality rate.

Federal policy fails to prepare the nation for this possibility. It identifies

500,000 workers, including emergency doctors, as bioterror responders but only encourages vaccination. The Smallpox Emergency Personnel Protection Act tried to persuade them to be vaccinated. This disability law pays up to

$262,000 for side effects, but only 39,554 workers have had the shot.

An ineffective vaccination policy for emergency doctors is the greatest hole in the nation's security from this bioterror threat. They must play a critical role in identifying and isolating the disease. Yet, to avoid this infection, many unvaccinated emergency room workers in Dark Winter failed to show up for work after the attack was announced.

I propose a law and economics approach to improve this aspect of national preparedness. My idea is derived from the nation's early history when doctors were hired to fight smallpox. In the 1800s, towns paid large incentives to persuade doctors to administer risky vaccinations and quarantines.

Lessons are also taken from the Swine Flu vaccine program. Congress believed that nationwide inoculation was needed in 1976 to prevent great loss of life, but vaccine makers feared tort liability. Congress fixed this problem by substituting the United States for a company or doctor who provided vaccinations. This shows that a federal cap on tort liability greatly improves participation by health care providers in an emergency vaccination program.

This experience provides an analogy to address the current lack of bioterror responders. Emergency doctors are burdened by soaring malpractice insurance costs. Costly insurance is causing many to retire or curtail their practice. This is depleting the supply of doctors to diagnose and isolate smallpox.

In sum, experience from the 1800s shows that special incentives are needed to persuade doctors to deal with smallpox. More recent experience shows that doctors participate in risky vaccination programs when they are shielded from tort liability. Congress should therefore cap tort damages for emergency doctors who are vaccinated for smallpox.

POX AMERICANA? VACCINATING MORE EMERGENCY DOCTORS FOR SMALLPOX: A LAW AND ECONOMICS

APPROACH TO WORK CONDITIONS¹

Now, experience fully evinces the eminent utility of the kine pox [vaccine] in saving expense, as well as placing a safeguard around each individual, to protect life and health, while all attend to their usual vocations, instead of being confined with a loathsome disease, or becoming nurses to those who are thus confined. We are, therefore, disposed to support the selectmen, and the town, in this measure to prevent the spreading of the disease, when circumstances render any measures necessary.²

-Hazen v. Strong

It could take days, or even weeks, for the symptoms of a biological agent to begin to manifest themselves. In the case of a [bioweapon] attack, the first responder, the very tip of the spear, is likely to be a primary care physician, healthcare provider . . . . Given the unheralded nature of these silent killers, it would fall upon the public health and medical communities to detect the attack, contain the incident, and treat the victims. The delayed onset of symptoms, coupled with the fact that it is difficult to discern a deliberate [bioweapon] attack like small pox from a naturally occurring infectious disease outbreak, makes attribution and identification of the perpetrators exceedingly difficult. Moreover, this type of attack can wreak havoc with the public, which must confront fear of the unknown.³

-Frank Cilluffo

INTRODUCTION

A. Statement of Public Policy Issue

The Centers for Disease Control ("CDC") confirms a case of smallpox in Oklahoma City.⁴Minutes later, the Governor declares that his state has been attacked by a smallpox weapon.⁵Fearful people with flu-like symptoms swamp emergency rooms.⁶The Commissioner of Health immediately plans to inoculate 3.5 million residents.⁷Before the epidemic is controlled, the virus infects 3 million people nationwide and kills 1 million.⁸

This scenario was simulated in Dark Winter.⁹Held at Andrews Air Force Base, Dark Winter was planned by reputable national security groups.¹⁰To improve realism, each sequence in Dark Winter built on real time policy decisions made by experienced politicians who played leadership roles.¹¹The simulation ran June 22-23, 2001-before 9/11-and identified a largely ignored terror group, Al Qaeda, as a potential smuggler of weaponized biopathogens.¹²

Id.

Dark Winter reflects a disturbing consensus among medical and national security experts. A smallpox attack is possible.¹³The CDC¹⁴and U.S. Department of Health and Human Services ("HHS") agree.¹⁵Scientists, publishing in respected medical journals, are sounding loud alerts. One warning states in the Journal of the American Medical Association: "Unfortunately, the threat of an aerosol release of smallpox is real and the potential for a catastrophic scenario is great unless effective control measures can quickly be brought to bear."¹⁶Other experts conclude in the New England Journal of Medicine: "It is imperative and urgent that we prevent the intentional or unintentional release of variola (smallpox) virus into an essentially unprotected global population that continues to benefit from 25 years of freedom from smallpox."¹⁷

Why so much alarm? The virus is already weaponized.¹⁸It spreads easily by normal human interaction.¹⁹After incubating for seven to seventeen days, the first symptoms of smallpox appear: fever, tiredness, head and body aches, and sometimes vomiting.²⁰After two to four days, small red spots develop on the tongue and in the mouth before progressing to the face, arms, legs, hands, and feet.²¹The rash spreads over the entire body within another twenty-four hours.²²The contagious period is long, starting with onset of a fever and ending when the last scab falls off.²³This assumes a smallpox patient survives. Three in ten die.²⁴

Smallpox is extremely infectious. It has no cure.²⁵This did not matter when everyone in the United States was inoculated for the virus. However, because smallpox vaccinations ended here in the 1970s, Americans have little or no immunity.²⁶A study authored by medical and public health experts sums up current vulnerability:

Although smallpox has long been feared as the most devastating of all infectious diseases, its potential for devastation today is far greater than at any previous time. Routine vaccination throughout the United States ceased more than 25 years ago. In a now highly susceptible, mobile population, smallpox would be able to spread widely and rapidly throughout this country and the world.²⁷ http://www.bt.cdc.gov/agent/smallpox/overview/overview.pdf (stating that "direct and fairly prolonged face- to-face contact is required to spread smallpox from one person to another. Smallpox also can be spread through direct contact with infected bodily fluids or contaminated objects such as bedding or clothing."). Also, the CDC notes that:

Id.

In this Article, I address the low smallpox vaccination rate for emergency responders, a group that includes emergency doctors. Dark Winter showed that a large group of unvaccinated emergency room personnel failed to show up for work after a smallpox outbreak was reported.²⁸Over 90% of people in the National Smallpox...