Nurse Reportedly Moving Toward Lawsuit Over Ebola Quarantine Rules

ICS_Lima.svgebolaThere appears to be a race by politicians to show who is more serious about Ebola by imposing greater and greater restrictions on anyone suspected of being a carrier. It now appears that we may have our first court challenge to these limitations and there are viable claims to be made. The American Civil Liberties Union is acting on behalf of a nurse, Kaci Hickox, who has been under quarantine after she arrived at Newark International Airport. I will be discussing the case on CNN this afternoon with Wolf Blitzer.

The ACLU is moving to a possible lawsuit that challenges the basis for Gov. Chris Christie’s mandatory quarantine of healthcare workers as unconstitutional. Hickox remains in New Jersey state custody over her objections. Her international aid organization, Doctors Without Borders, has also objected to the confinement following her work in Sierra Leone.

She was quarantined on Friday, shortly after another Doctors Without Borders volunteer working in Guinea, Columbia Presbyterian Hospital employee Dr. Craig Spencer, tested positive for Ebola. Spencer tested positive six days after returning to the U.S. That case led Christie and New York Gov. Andrew Cuomo to hold a press conference saying that they were going to reject the standards of the Centers for Disease Control standards and imposed their own restrictions to impose far stricter conditions. The new protocols would require travelers from West Africa to go into 21 days of quarantine even though they show no symptoms.

New Jersey state law contains a highly generalized provision giving the Department of Health the power to “maintain and enforce proper and sufficient quarantine wherever deemed necessary.” The question is what the basis for the action must be to satisfy constitutional standards. Obviously, if someone has a disease, the state has much greater authority. The laws states that the Department “has the power to remove any person infected with a communicable disease to a suitable place, if in its judgment removal is necessary and can be accomplished without any undue risk to the person infected.” However, Hickox has no symptoms.

Federal law also has such a provision authorizing the Surgeon General and other federal officials to impose quarantines to prevent the spread of communicable diseases. Federal regulations state that

Quarantinable communicable disease means any of the communicable diseases listed in an Executive Order, as provided under section 361 of the Public Health Service Act. Executive Order 13295, of April 4, 2003, as amended by Executive Order 13375 of April 1, 2005, contains the current revised list of quarantinable communicable diseases, and may be obtained at http://www.cdc.gov and http://www.archives.gov/federal_register. If this Order is amended, HHS will enforce that amended order immediately and update that Web site.

Recently President Obama signed an executive order as a “quarantinable communicable disease.”

Experts have criticized the United States for policies based on hysteria as opposed to science. A person is not contagious until someone is experiencing symptoms. Hickox was scathing in her condemnation of Christie and her description of the conditions of quarantine as “inhumane.” She also disputed Christie’s assertion a day earlier that she was “obviously ill.” She stated that “If [Christie] knew anything about Ebola he would know that asymptomatic people are not infectious.”

The White House joined that criticism and seems to have convinced Cuomo to reconsider his position. He said that medical workers who had contact with Ebola patients in West Africa but did not show symptoms of the disease would be allowed to remain at home and would also receive compensation for lost income.

After Cuomo back down a bit, Christie also issued a statement saying that New Jersey residents not displaying symptoms would also be allowed to serve the quarantine in their homes.

Unfortunately, this issue falls within a dangerously ambiguous area of the law. While large-scale quarantines have occurred in our history for such emergencies as Spanish Flu, the authority to order such confinement has remained highly questionable for people who are not clearly contagious.

Such public health authority is largely a modern construction. Indeed, federal authority to quarantine has been linked to the Commerce Clause and interstate movement. Until recently, federal isolation and quarantine has been authorized for these diseases (note the last one):

Cholera
Diphtheria
Infectious tuberculosis
Plague
Smallpox
Yellow fever
Viral hemorrhagic fevers
Severe acute respiratory syndromes
Flu that can cause a pandemic

Actions are generally taken under section 361 of the Public Health Service Act (42 U.S. Code § 264) by the U.S. Secretary of Health and Human Services.

The issue of disease curtailment has historically been a state not a federal issue — even though the authority is again implied. While Article I, Section 10 mentions state authority over “inspection laws,” the Constitution is otherwise silent. However, the Supreme Court has long recognized the power of states to impose quarantines as a basic element of their authority as a matter of the 10th Amendment. That power was discussed in 1824 in Gibbons v. Ogden by Chief Justice John Marshall. The Court recognized that quarantine laws (and inspection laws generally) “form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.”

The current federal regulations however suggest an almost entirely discretionary agency decision:

§ 70.6Apprehension and detention of persons with specific diseases.
Regulations prescribed in this part authorize the detention, isolation, quarantine, or conditional release of individuals, for the purpose of preventing the introduction, transmission, and spread of the communicable diseases listed in an Executive Order setting out a list of quarantinable communicable diseases, as provided under section 361(b) of the Public Health Service Act. Executive Order 13295, of April 4, 2003, as amended by Executive Order 13375 of April 1, 2005, contains the current revised list of quarantinable communicable diseases, and may be obtained at http://www.cdc.gov/quarantine and http://www.archives.gov/federal_register. If this Order is amended, HHS will enforce that amended order immediately and update its Web site.
[77 FR 75884, Dec. 26, 2012]

That is a disconnect with the areas of law governing civil detention and quarantines.

Once again, such actions are historically focused on people with proven communicable diseases. Moreover this confinement satisfies the definition of being in custody or prison under the Constitution since it is generally involuntary. When that occurs before trial, there is still an arraignment and showing of probable cause of not jus the underlying crime but the danger of flight or violence. To be sure, the standard for civil confinement is more relaxed and, according to Addington v. Texas (1979), can be based on a “clear and convincing evidence” standard, as discussed by people like Michael Dorf. However, it is unclear how such a standard would apply in situation like Ebola. What is clear and convincing evidence of the disease of an asymptomatic person is hard to define. Indeed, these new measures appear driven more by politicians than medical experts.

The problem is the lack of a limiting principle. If the risk of contamination is enough for clear and convincing evidence, the government could use such a rationale to confinement huge numbers of people for this and other diseases. The problem is that courts have spent decades removing key protections from areas like civil detention and increasing the authority of agency in the use of discretionary powers. If that body of law governs the issue of quarantine, it would allow for effective mass incarceration with little recourse in court. The federal regulations reflect this wide-open discretionary standard.

This is a case where an early lawsuit might not be a bad idea to allow courts to better articulate the standard before we have a true domestic crisis.

The New Jersey Department of Health just released the following statement:

Since testing negative for Ebola on early Saturday morning, the patient being monitored in isolation at University Hospital in Newark has thankfully been symptom free for the last 24 hours. As a result, and after being evaluated in coordination with the CDC and the treating clinicians at University Hospital, the patient is being discharged. Since the patient had direct exposure to individuals suffering from the Ebola Virus in one of the three West African nations, she is subject to a mandatory New Jersey quarantine order. After consulting with her, she has requested transport to Maine, and that transport will be arranged via a private carrier not via mass transit or commercial aircraft. She will remain subject to New Jersey’s mandatory quarantine order while in New Jersey. Health officials in Maine have been notified of her arrangements and will make a determination under their own laws on her treatment when she arrives.

Physicians at University Hospital have continuously monitored the patient’s situation since admittance on Friday, following her arrival at Newark Airport from West Africa where she had been treating symptomatic Ebola patients. The patient was initially found to have no symptoms, but later developed a fever. Because she had symptoms, she was subsequently transferred to University Hospital where she was placed in isolation under a quarantine order for review and testing. She was cared for in a monitored area of the hospital with an advanced tenting system that was recently toured and evaluated by the CDC. While in isolation, every effort was made to insure that she remained comfortable with access to a computer, cell phone, reading material and nourishment of choice.

277 thoughts on “Nurse Reportedly Moving Toward Lawsuit Over Ebola Quarantine Rules”

  1. The roof is in the pudding:
    http://www.nbcnews.com/storyline/ebola-virus-outbreak/its-over-texas-ebola-outbreak-has-ended-n242931
    It’s Over: Texas’ Ebola Outbreak Has Ended

    Ebola Patient Thomas Eric Duncan’s Family Frets About Hugs, Kisses
    The stepdaughter of Texas Ebola patient Thomas Eric Duncan says she’s worried about the kisses and hugs her children gave him over the weekend — even though he wasn’t secreting any bodily fluids and had the strength to walk to the ambulance under his own steam.
    http://www.nbcnews.com/storyline/ebola-virus-outbreak/ebola-patient-thomas-eric-duncans-family-frets-about-hugs-kisses-n217041

    Obviously it is exceedingly hard to get, not easier as some of the posters to this column would want to believe, or want others to believe.

    1. Actually I did not see a lot of people claiming Ebola is easy to catch on this site. There was discussion of of subjects like the meaning of airborne disease, whether Ebola might mutate to become airborne, the level of threat from Ebola, what preventive measures are reasonable, and whether quarantine is a reasonable response to the threat. I am sure there are a few other subjects that I didn’t mention.

      But you are exactly right about Ebola not being easy to catch. A basic fact used to describe and evaluate epidemics is Rnaught or R0. Rnaught is roughly the average number of cases that result from one infectious person over the period that person can transmit the disease.

      The NEJM article mentioned earlier has estimates for Rnaught for various Arfican countries that range from 1.44 to nearly 2.3. NPR recently gave Rnaught for Ebola as 2.

      In comparison accepted values for Rnaught for small pox and measles are 5 and 18 respectively. I should mention that small pox is considered eradicated.

      I would also guess that Rnaught for the US would likely be far lower because hot water, detergent, hand sanitizing gels are more readily available and burial practices are far different than in the African countries that seem to be the basis for the calculation of Rnaught as 2.

      In any case, when compared to other diseases Ebola is just not very contagious.

      Nevertheless, I would argue that the level of risk that society should accept and appropriate practices to meet that threat are fundamentally political questions. Science can and should inform our understanding of the risk associated with a particular public health policy. Science cannot tell us the level of risk society should accept.

  2. @Dust Bunny Queen: “Seriously. I routinely run a normal temperature of 97.5 . IF I am at 98.6….I’m sick……So to pick an arbitrary and extremely precise temperature as an on/off switch for exhibiting Ebola contagion, is really just ridiculous.”

    I think that is a reasonable issue to discuss. I did not mention it here but a similar question occurred to me. Should we be looking at a temperature like 100.4F or at an increase in temperature over individual normal, say 1.8F. Of course if we have to look for an increase in temperature over individual normal then the test would be useless for wide spread screening.

    Actually if there are enough people in the sample with different normal temperatures then that variation ought to be incorporated into the CI by the way CIs are calculated.

    But your remark raises other questions. What about those with compromised immune systems? Will we see the same temperature rise in that population?

    I don’t know the answer to these questions.

    But I think it is fair to say that when technocrats give us a comforting answers that seem to contradict everything we know about science and the scientific method it is unlikely their remarks will sill the controversy.

  3. @ BFM

    What, exactly, is the science behind 100.4F or the 101.5F that was previously used?

    Seriously. I routinely run a normal temperature of 97.5 . IF I am at 98.6….I’m sick.

    So to pick an arbitrary and extremely precise temperature as an on/off switch for exhibiting Ebola contagion, is really just ridiculous.

  4. The have been some statements here and a number on the web regarding afebrile Ebola. Here is an example from an article discussing Christie’s policies:

    “In fact, in a study published online in late September by the New England Journal of Medicine and backed by the World Health Organization, 3,343 confirmed and 667 probable cases of Ebola were analyzed, and nearly 13 percent of the time, those infected with Ebola exhibited no fever at all.”

    Has anyone seen the NEJM article that claims 13% exhibit no fever? Anyone have a cite?

      1. @Bruce

        Thanks for the cite. Here is a really interesting sentence:

        “The most common symptoms reported between symptom onset and case detection included fever (87.1%), fatigue (76.4%), loss of appetite (64.5%), vomiting (67.6%), diarrhea (65.6%), headache (53.4%), and abdominal pain (44.3%). Specific hemorrhagic symptoms were rarely reported (in <1% to 5.7% of patients) "

        This article does specify some confidence intervals, in particular for R0, the number of additional persons infected by a patient with the disease.

        But even this article does not anything more than tell us the number of patients presenting with fever, 87%.

        Even with that data, it is still necessary to do the analysis to determine what temperature is an indication of the disease – why 100.4F rather than 101.5F or 99.0F.

        In my view this article supports the view that we are talking about probabilities and should be using something like confidence intervals to express our view. However the articles does not describe how the temperature of 100.4F was determined or the probability, that is risk, associated with it.

        So 100.4F is still a mystery. But I think the article, until refuted, puts to rest the idea that we are talking about anything like certainly.

        I am not fearful of what CDC is doing. In my opinion they were caught flat footed and complacent at first, but they seem to have adjusted.

        I have read there are estimates that in the coming months we may see anywhere for 1 to 130 new cases of Ebola in this country. I am confident our public health system will handle the situation.

        But, as I said before, I think we have caught experts and high officials in a Nobel Lie that in my opinion was unnecessary and undermines confidence that citizens should have in their leaders.

  5. Ebola grows within your cells, multiplying until you build up a high level of the virus. That’s why it takes time to appear in the bodily fluids.

    “Even though the virus is growing within the body, during that incubation period there isn’t sufficient amount of virus to transmit disease to others until the illness is apparent,” Kettner explained.

    “It’s quite a fortunate feature of the disease – you can imagine if people are infectious without having symptoms how much more difficult this would be to contain the spread,” he said.

    http://globalnews.ca/news/1596488/how-does-ebola-spread-5-things-you-need-to-know/

  6. Perhaps my wording was not the best…..

    So, I will just quote an article that is saying what I was trying to say…

    “Based on today’s conversation with U.S. Centers for Disease Control and Prevention, the negative result indicates this person was not contagious and posed no health or safety threat during travels to North Carolina or to Duke,” Wos said Monday afternoon.

    The unidentified person will remain in secure isolation at the Durham hospital, however, until a second test within the next 72 hours can confirm the results.

    Duke Hospital’s chief medical officer, Dr. Lisa Pickett, said the initial test is a good sign but that, although the results are negative, there is a window of time where the Ebola virus “grows” in the bloodstream and that early on, concentrations can be very low.

    “Sometimes, in very early stages, with only a few symptoms, there will not be enough virus in the blood to turn the test positive,” Pickett said. “Then later, as there’s more and more virus in the blood, there would be enough to turn the test positive and then, likely at that point, to give the patient more symptoms.”

    http://www.wral.com/duke-hospital-patient-tests-negative-for-ebola-/14142583/#cEZSztARsGrKZGPa.99

    This is why they keep saying that a person is not contagious
    until they have not started presenting with symptoms and
    fever…..

    Do you think that the SECOND their fever spikes, they go from
    NOT contagious, to contagious, in 0-60???

    1. “Do you think that the SECOND their fever spikes, they go from
      NOT contagious, to contagious, in 0-60???”

      Even if you accept that patients are not infectious till they display symptoms there are questions and concerns.

      What, exactly, is the science behind 100.4F or the 101.5F that was previously used?

      Of course these are measures of body temperature and we use them as indicators that the patient is not shedding virus.

      You can Google and check articles for a long time and not find an explanation of 100.4F. I am sure it is out there somewhere. Maybe someone knows or can directs us to an article how 100.4F was derived.

      Based on the very, very little science that I know, I would guess that 100.4F is a critical value or lower bound for a confidence interval. Confidence intervals give us a precise way to state our level of belief about a particular subject.

      If 100.4F is in fact a part of a not fully articulated statement about a confidence intervals, then it is simply not true to claim that there is no chance the patient is not shedding when the temperature is below 100.4F.

      Confidence intervals do not divide the world into parts where we believe something is maybe happening and another part of the world where we know it is not happening. That is not what CIs mean and that is not the way we should try to use them.

      I think we have caught CDC and other experts telling a Nobel Lie. If 100.4F is part of a confidence interval then public statements seem to go beyond science and into areas that reflect personal belief and political advocacy.

      And if you read enough articles you will find some experts who acknowledge there is risk, just that the risk is very, very low.

      So the crucial question is what exactly the science behind 100.4F. I am betting it is part of a confidence interval. What do you think? Do you know?

  7. http://www.usatoday.com/story/news/nation/2014/10/06/how-ebola-spreads/16802063/

    “Theoretically, wet and bigger droplets from a heavily infected individual, who has respiratory symptoms caused by other conditions or who vomits violently, could transmit the virus – over a short distance – to another nearby person. This could happen when virus-laden heavy droplets are directly propelled by coughing or sneezing (which does not mean airborne transmission) onto the mucus membranes or skin with cuts or abrasions of another person.”

    Again, while spreading Ebola this way is theoretically possible, the WHO statement says there are no documented cases of Ebola spreading this way. When doctors and disease detectives interview people who have had Ebola, “all cases were infected by direct close contact with symptomatic patients.”

    While the Ebola virus has been detected in bodily fluids other than blood — including breast milk, urine, semen, saliva and tears — there’s no conclusive evidence showing that the virus really spreads this way.

    Although scientists have found the Ebola virus in saliva, it was most frequently found in the saliva of patients at a very late stage of illness, when the virus has had the chance to reproduce extensively. And while the DNA of an Ebola virus has been found in sweat, a “whole, live virus” — one that could infect someone — has never been found in sweat, the WHO says.

    The risk of transmitting Ebola by touching a contaminated surface is low, and can be reduced even more by cleaning and disinfecting surfaces with a bleach solution, the WHO says.

    In the study from Uganda, doctors tested 33 surfaces inside an Ebola treatment center, testing whether they could find the virus or even just its DNA. They didn’t find live Ebola viruses anywhere. They found DNA from the Ebola virus — which can be present even if the virus itself has broken down — on only two surfaces: a doctor’s bloody surgical gloves and a bloody site where an intravenous needle had been inserted.

    Doctors found no Ebola virus on light switches, bed frames or bedside chairs.

    Some experts have had other concerns.

    Infectious disease expert Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, has said he is concerned that the uncontrolled Ebola outbreak in West Africa could give the virus the chance to mutate in a way that allows it to become airborne.

    The new WHO statement, however, notes that this phenomenon — while theoretically possible — has never actually happened.

  8. This is a DIRECT quote from the link I provided…

    Ebola virus is detected in blood only after the onset of symptoms, usually fever. It may take up to 3 days after symptoms appear for the virus to reach detectable levels. Virus is generally detectable by real-time RT-PCR from 3-10 days after symptoms appear.

    ——————————————————

    New England Journal Of Medicine…
    From an October 27th piece called,
    Ebola and Quarantine

    Health care professionals treating patients with this illness have learned that transmission arises from contact with bodily fluids of a person who is symptomatic — that is, has a fever, vomiting, diarrhea, and malaise. We have very strong reason to believe that transmission occurs when the viral load in bodily fluids is high, on the order of millions of virions per microliter. This recognition has led to the dictum that an asymptomatic person is not contagious; field experience in West Africa has shown that conclusion to be valid. Therefore, an asymptomatic health care worker returning from treating patients with Ebola, even if he or she were infected, would not be contagious. Furthermore, we now know that fever precedes the contagious stage, allowing workers who are unknowingly infected to identify themselves before they become a threat to their community. This understanding is based on more than clinical observation: the sensitive blood polymerase-chain-reaction (PCR) test for Ebola is often negative on the day when fever or other symptoms begin and only becomes reliably positive 2 to 3 days after symptom onset. This point is supported by the fact that of the nurses caring for Thomas Eric Duncan, the man who died from Ebola virus disease in Texas in October, only those who cared for him at the end of his life, when the number of virions he was shedding was likely to be very high, became infected. Notably, Duncan’s family members who were living in the same household for days as he was at the start of his illness did not become infected.

    ———————————————–

    In studies of saliva, the virus was found most frequently in patients at a severe stage of illness. The whole live virus has never been isolated from sweat.[/B]

    http://www.cbsnews.com/news/ebola-lab-samples-yield-questions-as-well-as-answers/

    The study noted that enzymes in saliva or other conditions in the mouth appeared to inhibit the virus from surviving long there. The virus could be found in saliva samples during a patient’s acute phase of infection — eight days — but not longer.

    ———————————

    The 2007 body fluids study found no evidence of the virus in phlegm from airways, which appears to provide evidence that Ebola is incapable of airborne transmission.

  9. Add:

    justagurlinseattle:

    From the onset of symptoms, it takes ROUGHLY 3 days
    before the Ebola Virus has built up enough in the body
    to detect via blood test.

    Being that the virus has not built up enough to detect via blood tests.
    this means it is not transmitted during this stage.
    This is why the doctors and scientists who actually work with Ebola, are confident that it is safe to allow Health Care workers self monitoring, and and have them report when they are feeling the onset symptoms and fever.

    During this time, it is NOT found in saliva.

    It is first detected in the blood… and being that at the onset of symptoms
    there is not enough of the virus to test positive, then it is certainly not going to be found in the saliva of somebody who has just spiked a fever, or has felt
    totally unwell, and vomiting, etc… etc..

    None of this is supported by the CDC website. Where the heck did you get it from?

  10. justagurlinseattle: “From the onset of symptoms, it takes ROUGHLY 3 days
    before the Ebola Virus has built up enough in the body to detect via blood test. Being that the virus has not built up enough to detect via blood tests. this means it is not transmitted during this stage.

    That’s not what it means. Detection via blood test is not the threshold level for infectiousness.

    From cdc.gov/vhf/ebola/hcp/interim-guidance-specimen-collection-submission-patients-suspected-infection-ebola.html :

    Patients can transmit the virus once symptoms appear and through the later stages of disease, as well as postmortem.

    From cdc.gov/vhf/ebola/transmission/human-transmission.html :

    Ebola virus is usually detectable in patients’ blood at the time of fever and symptom onset, although Ebola virus RNA levels at the time of fever and symptom onset are typically low (near the detection threshold limits) and in some patients may not be reliably detectable during the first 3 days of illness (Figure 1).

    In other words, an Ebola-infected person may be symptomatic for days, and therefore infectious, before Ebola is detected via blood test.

    Scarier still is that the symptoms checklist may not be as reliably certain for identifying Ebola carriers as is being claimed by some authorities. Note the percentages.

    From cdc.gov/vhf/ebola/transmission/human-transmission.html :

    Ebola virus RNA levels in the blood increase logarithmically during the acute phase of illness (Figure 1) 14 and significant numbers of EVD patients have vomiting (67.6%), diarrhea (65.6%) and unexplained bleeding (18% and generally late in the course of disease)2 presenting opportunities for EVD transmission.

    While fever is a more reliable symptom, it also may be not as certain an indicator as claimed by some authorities.

    From latimes.com/nation/la-na-1012-ebola-fever-20141012-story.html :

    Yet the largest study of the current outbreak found that in nearly 13% of “confirmed and probable” cases in Liberia, Sierra Leone, Guinea and elsewhere, those infected did not have fevers.

    The study, sponsored by the World Health Organization and published online late last month by the New England Journal of Medicine, analyzed data on 3,343 confirmed and 667 probable cases of Ebola.

    The finding that 87.1% of those infected exhibited fever — but 12.9% did not — illustrates the challenges confronting health authorities as they struggle to contain the epidemic.

    The claim of “no evidence” of transmission methods has also been used a lot. However, lack of evidence is not necessarily evidence of absence.

    From cdc.gov/vhf/ebola/transmission/human-transmission.html :

    Indirect exposure to blood and body fluids (via fomites) has also been implicated in EVD transmission but is not common.
    … In outbreak investigations, some EVD patients have not reported contact with another EVD patient, leading to speculation regarding transmission via aerosolized virus particles. … transmission via droplets or fomites were also not ruled out.

    Erring on the side of (pre)caution with Ebola seems warranted.

    Some partisans have accused the state-level Ebola quarantine of being motivated by fear. Well, of course – precautionary measures like quarantine are normally motivated by fear. State-level Ebola quarantine is justifiably motivated by fear because rational people should be afraid of Ebola. As I said upthread, there’s a reason that Ebola was designated under Executive Order by the CDC as a “quarantinable communicable disease” before the current, worst outbreak of Ebola.

    The state-level Ebola quarantine doesn’t cause fear. Ebola rightfully causes fear. Quarantine dissolves the fear.

  11. leejcarroll,

    That’s like saying the NTSB shouldn’t worry so much about airplane accidents since more people die in vehicles on the road, water, and rails. One hopes American healthcare safeguards have not yet been reduced to a one-at-a-time, either/or approach.

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