The WSJ blog points to this interesting update [link no longer available] about the TB patient who was quarantined for having a highly-resistant strain of TB. I blogged about the case here and here. According to the news story, times aren’t very good from Andrew Speaker, the TB patient:
At National Jewish Medical and Research Center in Denver, where he was transferred from Grady, he received hate mail and death threats from people whom he said “turned on the news and saw this greedy, self-absorbed attorney.” At a congressional hearing, a representative referred to Speaker as a “walking biological weapon.” . . . .
Speaker was released from National Jewish on July 26, his treatment successfully completed. He takes 11 pills every morning at 8 a.m., supervised by public health officials who drop by on their way to work — a standard regimen he will follow for the next two years to make sure the TB has been fully eradicated. He’s in excellent health and has gone back to his previous routines, unmasked and unquarantined.
But his personal injury law practice is floundering, and his life is far from normal. His existing clients have stuck with him, but there have been no new clients since the ordeal began. The perception that he’s a selfish jerk who thought nothing of exposing others to a deadly disease lingers.
“The CDC told everyone that I only care about myself,” he said. “They made statements they knew were wrong. They intentionally went after my family and our character.” . . . .
His father’s practice has also suffered. Theodore A. Speaker, also a lawyer, has based his practice for 25 years on referrals from providers of prepaid legal services. Speaker said those companies stopped referring clients to his father after news of his TB broke because potential clients were afraid they’d catch TB if they came to Ted Speaker’s office, which he shared with his son.
Speaker is also being sued in Canada for $1.3 million by eight passengers on his flight from Prague to Montreal for potentially exposing them to TB plus pain and suffering. The brother of one passenger is also suing.
At the end of the article is this interesting tidbit:
Does Speaker have any plans to sue the CDC?
“They’re a federal agency. They have immunity,” he said in resignation. “It’s easier to think this guy is a jerk than that a government agency got together to intentionally misinform the public. That’s much harder to believe.”
According to the news reports, Speaker’s name was disclosed by government medical officials (probably CDC officials trying to cover their behinds for screwing up so badly). Medical officials have legal and ethical duties to maintain confidentiality. There’s also a potential Bivens action for a violation of the constitutional right to information privacy. See Whalen v. Roe, 429 U.S. 589 (1977). Most circuits recognize the constitutional right to information privacy, and it is violated by unjustified disclosures of personal information, especially medical data. For example, in Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990), the court held that the police could be liable for disclosing to a person’s neighbor that the person was HIV positive. There are many other cases on point.
The short of it is that Speaker does have a case against the CDC if he can prove that CDC officials leaked his name and/or other medical information. It is clearly established that government officials have a duty of confidentiality of medical data under the constitutional right to information privacy in most circuits, so any qualified immunity claims would not bar liability (qualified immunity applies if the constitutional violation is not clearly established).
I sure think that there might be a case here.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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