Dr. Howard Koh
The moderator will assume the role of an aide to the governor charged with managing the state's response to the pandemic. Dr. Koh will act as the governor's resource person for medical issues, and Mr. Baldridge and Mr. Abbott will be asked about the state's and the community's legal responses to the governor's proposals.
About three weeks ago there was an outbreak of a severe flu like illness in the Soviet Union. While it has not been fully characterized, it appears to be related to bird flu, but with a significantly lower mortality if affected persons get respiratory support and careful treatment of evolving symptoms. This includes ventilators in some case, antibiotics for secondary infections in most cases, and intense nursing care for all severely affected persons. There have been several isolated outbreaks in the U.S., related to travelers from the Soviet Union. Since this outbreak coincides with the beginning of the yearly winter flu pandemic, there was spread in the communities before the cases were identified and isolated. While the number of cases is limited so far, in our state they are concentrated in a smaller city without extensive hospital resources. The community hospital is swamped and there are efforts to bring beds online in an ambulatory care center and in a day surgery center. There are adequate medical volunteers to staff these facilities, but there is no spare equipment, especially ventilators. The community has asked the governor and the federal government to provide ventilators. The federal government has declined, having already deployed the small stock of ventilators in the Strategic National Stockpile. The governor was surprised to find that the community hospital did not have a stockpile of ventilators, since all of the state health plans stress the importance of providing surge capacity in all communities, and the local hospital had assured the state that it was prepared. The governor was horrified to find that the state itself did not have a stockpile of essential medical equipment.
First issue: (Dr. Koh) The governor would like to know: 1) Why don't hospitals keep spare beds and equipment for emergencies like this? 2) Why didn't the state health department buy extra equipment for all the hospital with that bioterrorism money they got?
Newspapers report that a group of academic medical centers has been stockpiling ventilators for the past two years so that they can respond to flu or other respiratory illness outbreaks. New ventilators are unavailable from medical suppliers, but they are available on the international gray market for 3x their regular cost. The governor wants to seize any unused ventilators and given them to the community with the outbreak.
Second issue: (Mr. Baldridge) Assume that the governor has the power to make the seizure in this situation: 1) What are the economic implications for the state of seizing equipment? 2) Can the state "give" them to the private community hospital? 3) What happens to the equipment when the outbreak is over? Can the state just give it back to avoid financial liability?
The academic medical center consortium resists the seizure and a federal judge orders an expedited hearing. The hospitals argue that they serve a major city and, relative to the population base, have no more resources than the smaller communities. Moreover, they provide critical services to an indigent population that has no alternative source of care. While the outbreak has not yet spread to the city, the hospitals argue that it is only a matter of time, and without the ventilators, they will be helpless to provide care. They argue that the state is putting the urban poor and minority populations at risk.
Third issue (Mr. Abbott) 1) How will this argument affect the governor? 2) What are the political problems it poses, and why should these matter? 3) Does it raise legal issues?
The agent has been named Russian flu and the outbreak is spreading to other communities in the state, and the number of cases requiring medical care is rapidly increasing. While there is pressure for all hospitals to accept their fair share of Russian flu patients, the hospital association argues that it is difficult to maintain proper isolation once a significant number of Russian flu patients are admitted, compromising the care of other patients.
Fourth issue (Dr. Koh) 1) The governor wants to know why the hospitals don't just send the other patients home. 2) Can flu planners just ignore other medical conditions requiring hospitalization for the duration of the outbreak?
While the hospitals all believe that there should be dedicated Russian flu hospitals, none of them wants to be a Russian Flu hospital because they are worried that they government will not pay them, and that patients will be frightened to return after the outbreak. The governor wants to seize private hospitals to designate as Russian flu hospitals. The hospital employees union and the state medical society warn the governor that their members are concerned that the hospitals would not be properly run by the state. Many of their members say they will refuse to work in seized hospitals. The governor is furious. The state passed the Model State Emergency Health Powers Act and it is says he can force people to work in emergencies. His administration assumed they did not have to worry about manpower because they could just order people to staff facilities if there was an outbreak.
Fifth issue (Mr. Abbott) 1) What are the legal and political issues in trying to force medical care professionals to do their jobs if they do not show up for work? 2) Can the governor put them in jail or revoke their licenses? 3) What are the political implications of such a move?
Other governors are alarmed at the plight of our governor, who is now in the position that whatever he does will anger major constituencies, undermining his political support and calling into question both his ability to manage the crisis and his future in politics.
Sixth issue (Mr. Baldridge) Are there other ways the state could use to work with private and community hospitals and health care providers to provide services in event of an outbreak? Are seizure and mandatory work orders effective approaches in the modern health care world? Should planners rely on their to provide critical services?
There are clear constitutional guidelines for seizing private property. If the property is seized and destroyed to protect the public health and safety, then the constitution does not require the government to pay compensation for the property. The owner of the property is entitled to a hearing to determine if the seizure was lawful, but this hearing may be provided after the property has been seized and destroyed. If the seizure was unlawful, the government must pay compensation.
North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) ; Juragua Iron Company v. United States., 29 S. Ct. 385, 212 U.S. 297 (1909); and Surocco v. Geary, 3 Cal. 69, 1853 WL 639, 58 Am.Dec. 385 (Cal. Jan Term 1853).
Seizing Persons/Forced Work
Traditional seizure cases were simple, such as seizing a boarding house to use as a pest house. Modern health care is much more complex. While the government might seize a hospital, it could not operate it without its staff. This raises the question of whether the government, and especially the states, can force people to work at their jobs. Since surveys show that significant numbers of health care workers will not show up for work during an emergency such as a flu pandemic, it can be expected that absenteeism will be even higher if there is a government seizure. If the workers do not trust the government to run the facility safely, which is likely in the light of government actions taking in the wake of Hurricane Katrina, few workers may be willing to stay in their jobs. There is very little precedent for forced work, outside the military and jury duty, and a real question about its constitutional limits. This leads many public health law experts to advise negotiated agreements with facilities, based on regulatory powers, rather than seizures under the police power.
Selective Draft Law Cases, 245 U.S. 366 (1918); Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004); and Korematsu v. United States, 323 U.S. 214, (1944).
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