One of the trickiest areas of law deals with the infringement of freedoms and rights. When is it okay for the government to rescind the normal rules and order for a few to protect the many?
This question gets even further complicated when considering the implications from a medical malpractice viewpoint. It is necessary for a doctor to offer help to a patient but if that help comes with another set of risks, is it still a good idea?
In times of panic, where people tend to make decisions more poorly and with less regard for the consequences, how can we expect medical professionals to handle themselves and a scared public?
When Quarantine is Needed
The ability for the government to issue a quarantine order comes from the Constitution. In the Commerce Clause, stipulations are made to sanction the few for the benefit of the many. Still, the CDC issues careful guidelines for exercising this power.
The authority to issues a quarantine covers state, local, and tribal governments. Each of these entities can act independently to issue such a demand under their own authority, but in typical top-down fashion, they can’t ignore a directive from the Federal government.
Quarantine is not an all-encompassing power. To make an order, the government has to issue a Quarantine Order which lists conditions for release and usually a timeline for how long it will take to determine if a person has been infected or is cleared.
Exposure Due to Quarantine
A person in quarantine is still afforded all the regular civil rights to seek “redress of grievance” in the case of medical malpractice or injury. Being forced to stay in a place and abide by a certain set of rules has some mitigating influence, e.g. if you don’t follow prescribed treatment.
If you are quarantined, and because of that are exposed to the infection and later become infected, your ability to seek compensation are more difficult. The greater good, from a legal standpoint, can justify a person being kept in quarantine even if they aren’t infected.
If the sanitation and other controls to prevent disease are not met while in that situation, then the door opens for a lawsuit. You can check the state codes allowing for quarantine in this list.
Isolation and Malpractice
Isolation is a different case. When placed into isolation, a person must be shown to have a disease or symptoms of that disease.
Where quarantine has more flexibility in how it can be enacted, isolation is stricter. Since a person is isolated, they are unlikely to be exposed to an illness that they are already suspected to have. It can still happen when labs are confused or a false positive occurs.
The guidelines for both quarantine and isolation demand that the least restrictive setting be used. This means allowing general contact through phone or messages, not being restrained, and made comfortable even in grave situations.
Compulsory adherence and acceptance of treatment is not covered. A patient, even in isolation, can still refuse care, though doing may leave them unable to leave under the letter of the Quarantine Order.
It’s a frightening time for many with the looming threat of Covid-19. Like most times when there is a panic, people are sometimes quick to give up their rights for safety. It’s important that state and federal agencies conduct themselves appropriately and not abuse extensions to their power.
If you have been wrong and caused injury by medical decisions, you need representation. Start by contacting us to learn more about your options. We’re here to help.