Legal Liability of Public Health Officials
LEGAL LIABILITY OF PUBLIC HEALTH OFFICIALS
Historically, the doctrine of sovereign immunity has prevented lawsuits from being filed against public health officials. Sovereign immunity prevents the states and the federal government, and their officials, from being sued. Most countries have some version of sovereign immunity. In the United States, sovereign immunity does allow lawsuits to prevent the enforcement of unconstitutional laws, but not for injuries to persons. Congress and the states have passed laws called tort claims acts (TCAs) that waive sovereign immunity in certain circumstances. Congress has also passed various civil rights acts that allow suits against persons acting under governmental authority who violate constitutional rights and certain federal laws. Other countries have similar, but usually much more limited, waivers of sovereign immunity. This article is limited to United States law.
While TCAs and civil rights laws allow lawsuits against public health officials, their liability is still very limited. Public health officials doing core public health policymaking and enforcement are seldom sued successfully in their official capacity, and they are almost never found personally liable. However, not every employee of a public health agency is a protected official, and some activities performed by health departments, such as personal medical services, are not considered core public health activities and are not sheltered from liability. Federal standards for liability are uniform across the states. States, however, have different standards for what is a core public health activity and who is a protected official. The general principles of state liability are similar, but public health officials must become familiar with the laws in their own states.
PRINCIPLES OF LIABILITY
The legal rules for liability for government officials are shaped by three concerns. First, the state generally has no duty to provide services. Second, the government and public officials should be accountable for negligent or intentionally harmful actions. Third, since the state has no duty to provide services, then legal liability will tend to reduce public services, and personal liability for public health officers will make it difficult to attract qualified professionals for public health service. The courts balance the value of the service against the potential harm caused by improper actions. For public health, the potential value of the service is very high because so many persons can be harmed by an epidemic or toxic exposure. The potential risks posed by improper public health actions are relatively low, especially compared to activities such as law enforcement, where deadly force is often at issue. A wrongful quarantine can be quickly reviewed and remedied through a habeas corpus proceeding. Even if the action exceeds the department's legal authority or is based on negligent decision making, the public health officer will be immune, unless the plaintiff can show that the officer knew or should have known the action was illegal or improper. Mistakes alone do not result in liability.
TYPES OF CLAIMS
Public health officials can be sued in their official capacity or as private persons. Official capacity means the public health official is a surrogate for the government and is not personally liable if damages are awarded to the plaintiff. These lawsuits are usually brought to stop enforcement of an alleged unconstitutional law or to stop alleged unconstitutional or otherwise illegal behavior by a health agency. They are governed by sovereign immunity, the principle that the government cannot be sued without its permission.
Private capacity lawsuits assert personal wrongdoing by an official, and, if successful, damages must be paid by the official. This personal wrongdoing may be related to official duties or may be strictly private conduct, such as causing an accident while driving drunk.
LIABILITY UNDER FEDERAL LAW
The Civil Rights Act of 1871 allows citizens to sue persons who, acting under color of state law, deprive them of their constitutional rights. This is the most common basis of federal claims against public health officials. The key section of this law is codified in U.S. law under Title 42, Section 1983, giving the name "1983 actions" to these claims. Since the Eleventh Amendment of the Constitution prohibits most private lawsuits against the states, 1983 actions can be brought against state officials in their personal capacity, but not in their official capacity. City, county, and other nonstate officials can be sued personally and in their official capacity, allowing damages to be obtained from the governmental entity. In 1971, the United States Supreme Court allowed claims against federal officials who violated an individual's constitutional rights in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. A "Bivens action" is the federal equivalent of a 1983 action. Bivens actions, 1983 actions, and related actions against public health officials have similar requirements.
1983 actions must allege a violation of the plaintiff's rights arising from the Constitution or certain federal laws. Most public health cases are violations of the constitutional rights of equal protection or due process. Equal protection claims arise from differential treatment that is motivated by improper discrimination, especially discrimination based on race, ethnicity, or religion. Thus the Supreme Court in Yick Wo v. Hopkins (1886) held a fire ordinance unconstitutional because it was only applied to Chinese laundries. Differential treatment is constitutional when it is based on nonsuspect classifications or is scientifically appropriate. Thus it would not be an equal protection violation to screen only African Americans for sickle-cell disease, certain Jewish groups for Tay-Sachs disease, or prostitutes for gonorrhea. Refusing to issue a license or permit to a class of persons could be an equal protection violation, unless there were rational grounds for the refusal.
Due process claims arise when a public health official does not provide the procedural safeguards the law requires, or when the law itself may be unconstitutional. If a statute requires thirty-days notice and an opportunity for a hearing before destroying a dangerous building, then it could be a due process violation to destroy such a building without notice. If a defendant has complied with applicable statutes, then the plaintiff can claim that the Constitution requires more process than the state or local law provides. Claims commonly arise when public health officials take action without a pre-deprivation (prior) hearing. If the action is authorized by statute, or the court finds there are exigent circumstances, the court will dismiss the claim.
Section 1983 applies to anyone who acts under color of state law, including those working under the authority of the health department, irrespective of their employment status, and can even be applied to volunteers. It does not provide for vicarious liability, so public health officials can only be held liable for their own actions. They cannot be held liable for the unconstitutional actions of their subordinates, unless they were personally involved in these actions. The courts give public health personnel qualified immunity for their official actions. This means that they will not be held liable unless their conduct violates clearly established statutory or constitutional rights that they should reasonably have known about. Being mistaken about the law is not enough, nor is acting under a law later declared unconstitutional. Since public health officials have broad authority in most jurisdictions, it is difficult to show that a
STATE LAW LIABILITY
State law liability is controlled by the state's constitution and TCAs, which differ among states. State public health officials have official immunity when they are making policy decisions or performing discretionary acts, which are those acts that require the exercise of professional judgment. Inspecting a restaurant and deciding whether it should be cited for health-code violations is a discretionary function. Official immunity for discretionary functions is determined by the nature of the function and not the job title of the employee. It can extend to every employee of the department, although the law is not so clear when tasks are done by private contractors. Tasks that do not require discretion, called ministerial tasks, are either those that follow a predetermined plan and cannot be changed, such as following a checklist, or those that do not involve any special expertise related to public health, such as driving a car. Discretionary immunity applies unless a plaintiff can show that a reasonable person in the official's position would have known that the action was unambiguously beyond the scope of the official's legal authority or was otherwise illegal.
Most states further classify public health functions as governmental or proprietary. There is official immunity for discretionary governmental functions, but not for proprietary functions. The definition of these terms varies greatly between states, with some states holding that almost all public health functions are governmental and others finding that a substantial group are proprietary. Traditional public health services such as restaurant inspection, animal control, health and safety permits and licenses, sanitation, vital statistics, and related functions are considered governmental in almost all states. The biggest exception is personal medical services, such as prenatal care and general indigent health care. Most states do not consider these as governmental functions and apply ordinary medical malpractice law to them. However, if the medical service is related to protecting the public, rather than just helping an individual, it will be termed governmental. Thus treatment and testing for tuberculosis or sexually transmitted diseases would be a governmental function.
If the function is proprietary or ministerial, then the state TCA will determine the extent of liability and when the official is personally liable. TCAs limit liability—usually between $100,000 and $1,000,000—and generally prevent the recovery of punitive damages. TCAs provide that the state will defend the lawsuit and pay the claim if the official is sued personally. There are usually exceptions if the claim is for intentional wrongdoing that is outside the official's duties. This might include sexual assault charges or criminal conduct such as bribe–taking by an inspector. Depending on state law, the TCA may not apply to nonemployees such as contract physicians in clinics. These individuals may need to have private insurance to defend and pay claims brought against them.
Public health officials should assure that they are well-versed in public health law, and that the personnel in their departments are conversant with the laws that govern their jobs. While many issues are common to all the states and the federal government, it is critical to identify specific state requirements and limitations. Public health officials should work closely with their legal counsel. Protocols should be developed to handle common legal problems such as inspections and warrants. Cooperative agreements should be worked out with other departments and governmental units for handling emergency conditions such as toxic spills or bioterrorism. Local hospitals and medical organizations should be educated about their legal duties and encouraged to work closely with the health department to manage disease outbreaks. Such advance planning reduces the need for public health officials to use coercive legal authority and avoids legal conflicts.
Public health officials should work with legislators at the city, county, and state levels to ensure that public health legislation does not increase their liability. Overly specific legislation, or legislation that provides for excessive pre-deprivation due process, makes it very difficult to respond to emergent conditions or to situations unanticipated by the legislature. It is critical that public health legislation and regulations preserve sufficient flexibility to allow public health officials to act quickly and innovatively. If not, then the officials may be forced to risk potential liability to protect the public's health.
EDWARD P. RICHARDS
(SEE ALSO: Codes of Conduct and Ethics Guidelines; Landmark Public Health Laws and Court Decisions; Police Powers; Public Health and the Law; Quarantine, and articles on specific diseases mentioned herein)
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