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Five Things Every Lawyer Should Know About The Ebola Virus

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Ebola is a frightening disease — even the name sounds scary. If you think the subject has all but disappeared from the headlines of today’s 24-hour news cycle, you are sadly mistaken. According to the World Health Organization, staff at the outbreak sites see evidence that the numbers of reported cases and deaths vastly underestimate the magnitude of the outbreak. Headlines are still showing up in the New York Times and Yahoo News, just to name a few.

There is no vaccine or definitive cure for Ebola, and in past outbreaks, the virus has been fatal in 60 to 90 percent of cases. Symptoms usually appear about eight to 10 days after exposure, according to the Centers for Disease Control and Prevention. At first, it seems much like the flu: a headache, fever, and aches and pains. Sometimes there is also a rash. Diarrhea and vomiting follow soon thereafter.

Then, in about half of the cases, Ebola takes a severe turn, causing victims to hemorrhage. They may vomit blood or pass it in urine, or bleed under the skin or from their eyes or mouths. But bleeding is not usually what kills patients. Rather, blood vessels deep in the body begin leaking fluid, causing blood pressure to plummet so low that the heart, kidneys, liver, and other organs begin to fail.

In light of such outbreaks, attorneys should take a moment to consider the implications of Ebola coming to the United States from a legal perspective. This is certainly not a far-fetched idea and the possibility is not hyperbolic. Therefore, here are the top five issues that an attorney should consider if Ebola takes hold here stateside:

1) Expansion of Federal Power

According to Trinity Law School’s professor of Constitutional Studies, Neil Rodgers, the federal government could make a case that Ebola would constitute a “grave and imminent danger to public safety.” Relying on the landmark case of Korematsu vs the United States, Professor Rodgers points out that while Korematsu speaks to an eminent potential invasion in the United States by an enemy force, the government could easily make a corollary between an ever-expanding and deadly virus and an invasion by an enemy force. Under such a scenario, the President and other branches of government could rely on the War Powers to dismiss procedural due process, which could potentially result in a complete suspension of an individual’s fourth and fifth amendment rights along with a writ of habeas corpus. As such, the individual who came down with Ebola in the United States could be scooped up and imprisoned by the federal government; even their property could theoretically be seized under the guise of “public safety.”

2) Suspension of the Freedom of the Press

Noting several suppression cases (the most prominent being the Pentagon papers), Professor Rodgers makes it clear that the Supreme Court never really foreclosed on the suppression issue and rather suggested that matters of prior restraint could be forthright in situations of clear and present dangers of harm. While Professor Rodgers does not believe the government could make a blanket suppression of First Amendment rights, there may be instances where a particular news outlet could be subject to an injunction in order to prevent a compelling news story that could cause widespread panic.

Interestingly, Professor Rodgers posits that the President could actually execute an Executive Order suppressing all First Amendment rights under the case of an Ebola outbreak with criminal penalties. While this may be entirely unenforceable, by the time the initial issue of standing ran its course through the court system (and this could potentially take years), the government’s goal of suppressing speech related to Ebola would be achieved under a “shoot first and ask for forgiveness later” scenario.

3) A New Standard of Care.

If Ebola becomes rampant here in the US, would health care workers bear liability for failing to diagnose an individual struck with the disease? Robert Harrison, partner at Wilson Elser, points out that doctors should stay up to date with what should be considered the “standard of care” for their area. This means that if most doctors in a particular locality are merely asking a few questions related to whether an individual was out of the country, this may be enough to demonstrate a diligent commitment to “standard of care” practices. However, if doctors are in fact testing for Ebola, then these doctors should follow suit and potentially test their patients as well.

4) Exceptions To Attorney-Client Privilege

If your client comes down with Ebola, he or she is likely going to want to stay as far away from the government as possible to avoid quarantines. Under this situation, would you as an attorney have an obligation to inform the government where your client is hiding? Professional responsibility attorney Zachary D. Wechsler believes that you could, in fact, run afoul of Rule 3-100 if you were to tattletale on your client.

Under Rule 3-100, before revealing confidential information to prevent a criminal act a member shall, if reasonable under the circumstances:

(1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (2) Inform the client, at an appropriate time, of the member’s ability or decision to reveal information.

Clearly, unless the federal government declared Ebola infection a criminal act, it would be unlikely that an attorney could reveal confidential information concerning the client. In addition, it would be difficult to make a case that Ebola could constitute a threat of death or substantial bodily injury to others.

5) PR Relief for Tobacco

The Associated Press recently put out an article discussing how tobacco plants may ultimately provide a cure for Ebola. Pharmaceutical companies are creating experimental treatments derived from tobacco plants that were turned into living pharmaceutical factories. Using plants this way — sometimes called “pharming” — can produce complex and valuable proteins for medicines. Scientists favor tobacco plants because they grow quickly and their biology is well understood. A San Diego company called Mapp Biopharmaceutical Inc. has produced an experimental drug called ZMapp, which uses antibodies designed to inactivate the Ebola virus and help the body kill infected cells. The drug hasn’t been tested on humans but had shown promise in animal tests, so it was tried with three people suffering from Ebola in West Africa.

Granted, these type of tobacco plants are not necessarily the type of tobacco plants with which you would make cigars or cigarettes. Nevertheless, who would have thought that the lowly and sometimes hated tobacco plant may eventually provide a cure and save the planet?

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One Comment

  1. Rob MacKnight says:

    Nicely done, Brian. Good overview of what is happening, what may be happening–though we hope they remain the stuff of dramatic films instead of real life; see “Outbreak” from 1995 starring Dustin Hoffman–and some aspects that we need to consider in the wild “what if?” scenarios that we hope do NOT play out. Also, great to hear that MAPP Biopharaceutical, Inc of San Diego may have found a good use for tobacco versus the mere profit from making heinous things to inhale.