Quarantine and Liability in the Context of Ebola

Courts have only rarely evaluated quarantine or isolation orders issued by a state health department, but they may soon do so in the context of Ebola. Litigation has begun in New Jersey and Connecticut pursuant to quarantines imposed on returning health-care workers during the 2014 Ebola scare. These lawsuits raise questions about the authority and responsibility of state health departments with respect to people who were potentially exposed to the virus but who exhibited no symptoms. Ebola presented a unique situation because the disease takes up to three weeks to develop after exposure yet required lengthy quarantine of people who were exposed but not sick. This article briefly explores the legal standards that apply.

BACKGROUND

In October 2014, Kaci Hickox returned to the United States from Sierra Leone, West Africa, where she had worked for Médecins Sans Frontières at an Ebola treatment unit. In a widely publicized series of events, Hickox spent nearly four days in isolation by order of the New Jersey Department of Health, initially at Newark International Airport. News reports followed her subsequent removal to Maine, where she remained under a quarantine order for three weeks. Hickox exhibited no symptoms throughout her isolation and never developed Ebola.

After being ordered by the Maine Department of Health into strict home confinement, Hickox and her attorneys successfully sued the Maine Department of Health to modify the order. The quarantine order in Maine became the first, and so far only, judicial modification of a public health order related to Ebola. A state judge ruled that public health officials had not proved “by clear and convincing evidence that limiting respondent's movements to the degree requested” was needed to protect the public.¹ The modification eased the most stringent aspect of the order—home seclusion for three weeks—while retaining monitoring and social-distancing aspects of the quarantine order consistent with recommendations by the Centers for Disease Control and Prevention.² Medical groups argued that automatic quarantines of three weeks for people displaying no symptoms discouraged health-care workers from traveling to Ebola-stricken countries, while Maine and other states contended that such restrictions were necessary to protect public health.

With the support of the American Civil Liberties Union (ACLU), in late 2015 Hickox filed a lawsuit pursuant to her treatment in New Jersey, naming as defendants Governor Chris Christie, the Commissioner of the New Jersey Department of Health, and two other New Jersey Department of Health employees.³ The lawsuit alleges that upon arrival at Newark International Airport, Hickox was taken into custody and detained without medical grounds or legal justification for approximately 80 hours. Unlike the Maine lawsuit, which sought modification of an existing public health order, in this lawsuit, Hickox seeks $250,000 in compensatory and punitive damages from New Jersey officials.

In a second lawsuit, students working with Yale University's legal services organization and the ACLU filed a class action lawsuit against the Governor of Connecticut and state public health officials pursuant to the state's treatment of residents affected by Connecticut's Ebola quarantine policies.⁴ The complaint seeks damages on behalf of Connecticut residents who were quarantined for up to three weeks in fall 2014, with police officers posted outside their residences.⁵

LEGAL STANDARDS FOR QUARANTINE AND ISOLATION

The modern use of the term “quarantine” is distinguished from “isolation”: quarantine separates and restricts the movement of people who may have been exposed to a disease to see if they become sick, while isolation separates sick people with a contagious disease from people who are not sick.⁶

Courts will review individual quarantine orders to require health departments to respect the civil liberties of those it segregates from the community. Such review, however, occurs only after a quarantine or isolation order is in place or has ended. In most states, public health officials are not required to seek court approval in advance. A useful comparison is the Model State Emergency Health Powers Act, which sets out provisions for states to adopt granting public health powers “to ensure a strong, effective … response mechanism to public health emergencies while also respecting individual rights.”⁷

Legal doctrine balances the tension between individual liberties and public necessity by requiring health measures to be reasonable and not arbitrary. To avoid liability, a health department must show (1) a public health necessity, (2) an effective intervention with a demonstrable connection between means and ends, (3) proportionality (i.e., that the intervention is neither too broadly nor too narrowly tailored), and (4) that the quarantine or isolation is in the least restrictive setting while accomplishing its purpose.⁸ These standards are derived from the U.S. Constitution. Health departments also must follow state law and procedure, including the health department's own rules.

The most important court precedent striking down a quarantine occurred more than a century ago. A quarantine of San Francisco's Chinatown was an “unreasonable restriction” because the 12-block cordon was based merely on unfounded rumors of bubonic plague. It also targeted only people of Chinese ancestry with no justification for the racial classification.⁹

ALLEGATIONS IN HICKOX V. CHRISTIE

The Connecticut and New Jersey lawsuits regarding Ebola quarantines pose identical issues. This article focuses on the New Jersey litigation, Hickox v. Christie, the most widely publicized quarantine of a returning health worker.

Hickox alleges there was no legal or medical basis for the quarantine order in her case. Hickox was placed into quarantine pursuant to New Jersey's statewide Ebola Preparedness Plan, created by executive order of the governor on October 22, 2014. Hickox was detained at the airport upon her arrival on October 24 and was later transported to a hospital isolation unit. The next day (October 25), the New Jersey Department of Health issued an administrative order declaring quarantine and isolation of Hickox.

Hickox alleges that she was detained, isolated, and quarantined without an adequate individualized assessment of the risk, if any, that Hickox posed to the public. In addition to the lack of an individualized assessment, she also claims that health department officials did not use the least restrictive means available to protect the public, and the nature and duration of the confinement did not bear a reasonable relation to the purpose for which she was confined. Hickox also alleges that the relevant New Jersey statutes do not authorize quarantine of people who are merely at risk of exposure and not actually exposed to a communicable disease.

The State of New Jersey alleges that Hickox at one point registered a fever. Hickox denies that she had a fever and maintains that she was asymptomatic throughout her confinement. Most statutory authorizations for quarantine allow for, but do not mandate, quarantine of asymptomatic individuals (i.e., people who have been exposed to a quarantinable disease but who do not exhibit any signs or symptoms of infection).¹⁰ The key questions in this case will thus turn on the adequacy of the individual assessment and whether or not the health department used the least restrictive means of confinement. In a public health emergency, courts afford wide latitude to public health officials so long as these two standards are met. Judges are hesitant to second-guess medical experts but will intervene when provided with authoritative medical testimony, as in the Maine decision. The Maine Medical Association, among other medical experts, had issued a letter arguing that indiscriminate quarantines of returned health-care workers “may be well intended” but that the policy “is not supported by the science or experience.”¹¹ Documentation of health department action is key.

Hickox also alleges that New Jersey failed to provide for a prompt hearing for judicial review of her isolation where she could be represented by counsel and could present opposing evidence. Judicial review of quarantine orders is limited. In most states, including New Jersey, the quarantine order may be imposed without prior judicial approval, providing that the opportunity to challenge the order is allowed when reasonably possible. Quarantined individuals must be permitted to communicate with the outside world. Once Hickox was in Maine, her lawyers filed a lawsuit seeking modification of the isolation order, and they succeeded on the grounds that the order provided for greater confinement than was medically justified. Because of the comparatively shorter duration of her quarantine in New Jersey, no meaningful judicial review was likely possible, even if two or three days in quarantine prior to a hearing would be reasonable under the circumstances. The New Jersey defendants maintain that existing civil commitment case law did not clearly establish that Hickox was entitled to a post-confinement hearing before her release.

Personal liability of public health officials

In both the Connecticut and New Jersey lawsuits, state health department officials are personally named as defendants and, therefore, are potentially liable to pay monetary damages. This possibility, however, is qualified by important legal protections for public health officials.

As a general rule, government employees are protected from liability for reasonable actions taken in a good-faith belief of public necessity. For claims of constitutional violation, state health workers are accorded substantial immunity from personal liability. Qualified immunity, when applicable, shields government officials from liability when performing discretionary functions when their actions, even if later found to be unlawful, did not violate “clearly established law.” A right is not “clearly established” unless its contours are “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”¹²

This doctrine of qualified immunity protects public health workers who act in good faith and in a reasonable manner. The upshot is that precedent and policy lean heavily in favor of public health workers unless they violate settled constitutional standards. Immunity from liability is particularly relevant in the area of quarantine, because courts have yet to establish clear constitutional mandates.

Statutory rights are a different matter. If state legislation clearly establishes a process the health department must follow, any unexcused failure to follow such statutory directives will likely negate individual immunity.

Damages

If the court in Hickox's case were to determine there is no immunity from liability in this case, what might damages look like? Individuals subject to quarantine or isolation are not entitled to payment for lost wages. Back pay is not the state's responsibility. Hickox instead seeks compensation for wrongful quarantine and deprivation of liberty. If Hickox is successful on the merits of these claims, a jury would be asked to assess the amount of damages—what they view to be adequate compensation for wrongful conduct. Hickox also seeks punitive damages, which are intended to deter the defendant and others from engaging in similar conduct in the future. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award. Successful claims against health departments might also include the award of attorney's fees incurred by the plaintiff to bring the lawsuit.

PUBLIC HEALTH IMPLICATIONS

Whatever the outcome of Hickox v. Christie, best practices for quarantine and isolation are worth noting, because compliance with them can protect public health officials from potential liability. The qualified immunity doctrine is designed to protect officials who make a good-faith effort both to respect patients' rights as well as to protect the public in a health emergency. It is a careful balance, but law courts are unlikely to second-guess medical experts as to the measures they employ so long as the measures are both reasonable in light of existing medical knowledge and in the least restrictive setting necessary to accomplish the goal of protecting public health. A quarantine order must be supported by sufficient evidence.¹³ Quarantine situations are often fast-moving and, as a result, a perfect process is rarely possible.

In Jacobson v. Massachusetts, the U.S. Supreme Court stated that a “well-ordered society” must be able to enforce “reasonable regulations” in responding to “an epidemic disease which threatens the safety of its members.”¹⁴ Read broadly, the decision stands for sweeping authority for state and local health officials to respond to a public health emergency, so long as those actions are reasonable and take into account the aforementioned four legal standards. It is essential, however, that state health agencies follow their own rules and procedures and document medical necessity every step of the way. Judicial scrutiny after the fact will demand close adherence to these parameters.

The litigation currently underway is of great importance to the public health community for both policymaking and practice. Because courts have only rarely considered quarantine practices, these two pending lawsuits will inform, going forward, the close nexus required between medical necessity and least restrictive means.