The Ebola virus under a microscope (Image: CDC Public Health Image Library)
The failure of nurse Kaci Hickox to collect any money after being held by state officials for 80 hours in a tent outside a hospital, even after twice testing negative for Ebola, illustrates the difficulties of getting compensated for allegations of excessive quarantine measures.
Hickox was not awarded damages or legal fees in a settlement July 27 in her federal suit against Gov. Chris Christie and other state officials over the quarantine measures she faced after returning from a mission to treat Ebola patients in Sierra Leone. The state agreed in the settlement to adopt measures to protect the rights of quarantined persons, but the demand in her complaint for $250,000 in damages went unfulfilled.
Experts in health law said courts are reluctant to second-guess quarantine orders, even those that appear based more on political considerations than on sound medical advice.
Hickox was detained upon arrival at Newark Airport in October 2014 after spending a month working in an Ebola treatment center. The case was at the height of an Ebola outbreak in West Africa that killed more than 11,000 people. Hickox’s highly publicized detention was framed by the media as a clash with Christie over what constituted proper measures for preventing spread of the disease in the United States.
Hickox was motivated by the desire for achieving systemic change, and not for monetary gain, said her lawyer, Norman Siegel of Siegel Teitelbaum & Evans in New York, who represented her under auspices of the American Civil Liberties Union. The state did not offer a monetary settlement but was open to adoption of the “bill of rights” for people subject to quarantine, Siegel said.
“We were able to persuade them that these things were reasonable. So when the issue came to us with regard to resistance on the damages part but not on the rest, on what I call the bill of rights, Ms. Hickox told us she was in favor of getting the systemic change and she would not pursue damages anymore,” Siegel said.
Hickox hopes to encourage other states to adopt similar measures for regulation of quarantine, Siegel said. The settlement recognizes the right of a person under quarantine to retain counsel, to have a hearing, send and receive communications, and have visitors. The terms also say persons being evaluated for quarantine should have their temperature taken with an oral thermometer, which is considered more accurate than the forehead thermometer used on Hickox at Newark Airport, which showed her with a slight fever, Siegel said.
Attorney General Christopher Porrino said in a statement, “We can confirm that, on behalf of the state defendants, a settlement has been reached that resolves the legal dispute involving Ms. Hickox and results in the dismissal of her misguided lawsuit. Under the settlement there is no monetary payout. The supplemental protocols either restate or are consistent with existing law and regulations, as well as the processes implemented by the state since 2014. This outcome is further verification of the appropriateness of the state’s Ebola response.”
Health law experts say it’s difficult to collect damages for quarantine measures that are excessive. Hickox’s case was dealt a blow in September 2016 when U.S. District Judge Kevin McNulty of the District of New Jersey dismissed her federal claims for unreasonable seizure and substantive and procedural due process violations on qualified immunity grounds, leaving only state-law claims for false imprisonment and false light invasion of privacy.
A similar case in the District of Connecticut, filed against Gov. Dannel Malloy and other state officials on behalf of public health workers and Liberian immigrants who were quarantined for weeks after returning from Africa, was dismissed on qualified immunity grounds in March of this year. The plaintiffs have appealed to the U.S. Court of Appeals for the Second Circuit.
Courts are reluctant to interfere in decisions that are made in the midst of an epidemic, health law experts said.
“In these kinds of cases, judges are being very pragmatic—you might even say solomonic—when you’re in an emergency situation, as an official, you have to act. You might have imperfect information. There’s going to be pressure of fear, political pressure. It’s not a situation that promotes clear thinking,” said Scott Burris, a professor of public health law at Temple University’s Beasley School of Law. “In legal theory, damages are the right remedy. But I appreciate the fact that judges are thinking about practical considerations, including limiting the interference of the law with health officials.”
Litigation over quarantine is rare nowadays, and mostly concerns cases of tuberculosis, said Polly Price, who teaches public health at Emory University School of Law in Atlanta. Litigants who feel their quarantine conditions are excessive have prevailed in court, but generally on petitions for injunctive relief, rather than cases seeking damages after the fact, she said.
The context of a medical emergency makes an excessive quarantine measure different from, say, a police excessive force case, said Frank Ciesla, chair of the health care practice at Giordano, Halleran & Ciesla in Red Bank.
“The court’s going to be fairly reluctant to step in and interfere with the government in a public health emergency. I don’t know what information the governor had. I can understand why an attorney might conclude it’s better to settle the case, even though he’s not getting any damages, than to spend the time and money trying the case,” Ciesla said.