Journal Issue Date: March 2020
Journal Name: Vol 56 No 3
By William O. Shults with assistance from Michael Caskey
Update: The Tennessee Department of Health Rules & Regulation TRR 1200-14-4-.06(1) was changed to provide that petitions for public health measures are now to be filed in a court of record instead of General Sessions court. This became effective March 17, 2020.
“Even with modern antiviral and antibacterial drugs, vaccines and prevention knowledge, the return of a pandemic virus equivalent in pathogenicity to the virus of 1918 would likely kill greater than 100 million people worldwide. A pandemic virus with the [alleged] pathogenic potential of some recent H5N1 outbreaks could cause substantially more deaths.”1
The central premise of this article is that should we have a deadly disease pandemic, use of mandatory isolation and quarantine measures would be a valuable tool in stopping the spread of the disease, and that those methods can be administered in a way that preserves core American values such as personal liberty and rights provided for in state and federal constitutions. A critical analogue to this thesis is that citizens must be instructed, both in advance and during a pandemic, as to why isolation and quarantine are necessary for their well-being during a deadly disease outbreak.
While we shall consider later at some length the history of pandemic flu episodes beginning in 1918, as is the case currently with many matters, the Chinese experience with recent disease outbreaks is instructive. Obviously, this is particularly so in light of the current novelcoronavirus outbreak in that country. On Feb. 11, the World Health Organization (WHO) officially named the virus "SARS-CoV-2." The WHO has denominated the disease caused by the virus as "COVID19." While not a classic flu virus, the strain of the coronavirus now widespread in China causes symptoms, such as respiratory distress, often experienced with flu. Much is unknown about SARS-CoV-2 since this seems to be the first time it has appeared in humans. [Note that the online version of this article has been updated since the print edition was published, to include a distinction from the World Health Organization (WHO), which officially named the virus "SARS-CoV-2." The WHO has denominated the disease caused by the virus as "COVID19."]
With a population of more than 1.5 billion people, it should come as little surprise that China has been the location of this COVID 19 outbreak, as well as several potential epidemics in the 21st century. Some of the more recent outbreaks have even included resurgences of the plague — the so-called “Black Death” — in 2014, 2015, and most recently in 2019.2 On each occasion, the Chinese government’s response has involved the use of both isolation and quarantine as measures of separating infectious or potentially infectious people from the larger population in order to contain the spread of a dangerous disease.
Even still, examining China as a case study for containing infectious diseases such as influenza or the plague, there is a strong possibility that measures of isolation and quarantine might be ineffective if these measures are not known to and accepted by the larger populace. In 2002, for example, “the central government initially refused to acknowledge a nationwide outbreak of severe acute respiratory syndrome, or SARS, an illness with flu- and pneumonia-like symptoms.”3 As a result, the virus ultimately traveled across borders for some five months before the central government even publicly acknowledged that it was a potential issue.4 Subsequent to the SARS outbreak, Ministry of Health Spokesperson Mao Qunan announced: “What we learned from [SARS] is that transparency has a vital impact on whether a crisis is properly handled … . Any delay in the release of information has a negative influence.”5 Encouragingly, the Chinese government appears to be somewhat more transparent with regard to its handling of the current coronavirus and is working closely with the World Health Organization and many countries — as well as its own citizens.6
Although the use of isolation and quarantine is certainly not the entire answer to stopping the spread of a dangerous flu virus, these methods have historically proven very effective both in the United States and abroad and could play a significant role in stopping the spread of the disease when it inevitably appears in the future.7 However, as public reaction to outbreaks in China has shown, the only way quarantine and isolation measures work is through knowledge and transparency before, rather than after, the fact.8
This would be especially true in our own communities given American notions of personal liberty and individual rights.
Influenza – A Case Study in an Unrelenting Healthcare Problem
The 2018 influenza outbreak once again illustrated how vulnerable the world is to this incredibly resilient virus. The H3N2 strain of the virus filled medical facilities throughout the United States, and its mortality rate was startling, particularly among children and the elderly.9 It is not hyperbolic to argue that such a situation could become much worse should a form of the virus appear which we have not previously encountered and against which we have no vaccine and limited effective treatment options. The H3N2 strain of the flu and the H1N1 strain that caused a pandemic in 2009 are just two examples of how the fast mutation and resilience of the flu virus makes this a serious threat, rather than a vague possibility.10
That the world will experience another severe pandemic flu event is generally acknowledged. Dr. William Schaffner, one of the most respected infectious disease experts in the world, who teaches and practices at Vanderbilt University,11 has stated that the question is not if we will have another influenza pandemic but rather when it will happen. His voice is only one of many within his field. The former director of the United States Centers for Disease Control and Prevention (CDC),12 Dr. Thomas Frieden, has said that the flu “has the most potential [of all infectious diseases] to kill people and is one of the health threats that keeps me up at night.”13
This article discusses two non-pharmaceutical intervention methods (NPIs), which are provided for in both Tennessee statutory and regulatory law and which are a part of the planning tools adopted by both state and federal governments for use in the event of a severe flu outbreak. The NPIs we discuss here are isolation and quarantine.14
While perhaps not as exotic as new vaccines and treatment modalities, isolation and quarantine have proven to be extremely effective both historically and even as recently as 2003 when the SARS outbreak seriously threatened China, Canada and Singapore.15 Of course, using social distancing techniques such as isolating individuals who are already sick and quarantining those who are not yet ill but who may have been exposed to the virus may at first seem controversial and even harsh. However, quarantine and isolation methodologies are provided for in both Tennessee statutory and regulatory provisions and have been in place for a number of years. Importantly, those same laws and regulations contain due process protections designed to allay some of the fears concerning violation of individual rights.
Inevitably, lawyers throughout Tennessee, both at the state and local levels, will be asked to weigh in on a variety of issues should officials consider ordering isolation and quarantine. This article is meant to be a very brief primer for lawyers who will address these issues at a time when a pandemic virus becomes a threat to both the health of Tennessee’s citizens and the economy of our state.
A Brief Historical Perspective
Any discussion of the potential consequences of a worldwide pandemic disease outbreak must begin with a brief review of what happened between the spring of 1918 and spring 1919. It has been 100 years since the so-called “Spanish Flu” appeared and caused the deaths of some 675,000 persons in the United States alone at a time when the nation’s entire population was 103.2 million. On a worldwide basis, during that short interval, one-third of the world’s population was sickened by the flu, and approximately 50 million people may have died as a result of the disease.16
In Tennessee, historical documents indicate that in Nashville and the surrounding area alone some 50,000 people contracted the disease and that of those, 659 died.17 Statewide estimates are that 7,700 people died during that same period.18
Thirty-nine years later, in 1957, the United States experienced an outbreak of the so-called “Asian Flu,” which killed 70,000 people nationally and at least 2 million individuals around the world. In 1968, the “Hong Kong Flu” took the lives of up to 2 million people worldwide and 34,000 in the United States.19
Although not a classic flu infection, SARS appeared in 2003 in China, Singapore and Canada. Like influenza, SARS spread through airborne droplets from coughs, sneezes, or even breath within a certain range. Unlike the flu, however, SARS only became contagious after a patient became symptomatic, or started showing signs of sickness.20 SARS exhibited an overall mortality rate of 7.2%, becoming more fatal as the age of patients increased. For example, in persons between the ages of 45 and 64 the mortality rate was 15%, while those older than 65 experienced a 50% fatality rate.21 Disturbingly, the COVID 19 currently so prevalent in China appears to be transmissible between humans even when a carrier is asymptomatic.22
The question then arises as to how well Tennessee is prepared to protect its citizens from the next flu strain or any other deadly disease. Though local and state officials have studied the issue and prepared detailed plans concerning how a pandemic flu outbreak will be addressed, the fact of the matter is that the citizenry at large has not seriously appreciated the threat. According to annual CDC reports, on average less than a third of the general population of Tennessee received flu vaccinations in the 2017-2018 flu season, but this was only slightly less than the national average of 37.1%.23 Vaccination rates rose nationwide as well as in Tennessee during the 2018-2019 season, but vaccinations did not exceed 46% on average in either instance.24 Fortunately, among children, rates were better. 61.5% of children were vaccinated in the 2017-2018 time period in Tennessee, which was better than the national average of 57.9%.25 Flu vaccination rates for young children (ages 6 to 24 months) during that same time in Tennessee ran from a regional high of 65.8% to a low of 30.3%.26 The seriousness of this apparent lack of preparation is pointed up by federal government estimates that, even in the absence of a pandemic outbreak, influenza has annually caused up to 45 million infections, 810,000 hospitalizations and 61,000 deaths since 2010 across the United States.27
Relevant Tennessee Statutory Provisions
The seriousness with which our General Assembly views a potential outbreak of influenza was evidenced by the amendment of Tennessee Code Annotated § 68-1-201 in 2006 to specifically empower the Commissioner of Health to promulgate and put into effect appropriate rules and regulations should that disease present a threat of escalating to an epidemic level.28 In fact, that provision empowers the commissioner to prepare “such rules and regulations” as he feels necessary to prevent the introduction of any epidemic disease into Tennessee and to order quarantines if he concludes such measures are necessary.29 Should the commissioner become aware that an epidemic disease has already appeared in Tennessee, he is mandatorily required to implement rules and regulations he feels are necessary and which will, “with the least inconvenience to commerce and travel, prevent the spread of the disease.”30
Other provisions found in the Code also set out mechanisms that apply should an outbreak of serious disease occur.
As an initial note, Tenn. Code Ann. § 58-2-101(7) defines an emergency broadly as “an occurrence, or threat thereof,” that has the potential to cause injury or harm, with “disease outbreaks and epidemics” specifically listed as “natural threats.” Tenn. Code Ann. § 58-2-104 creates the Tennessee Emergency Management Agency (TEMA) and provides for the appointment of a director to oversee the day-to-day operations of the agency. During an emergency, however, the statute provides that the TEMA director shall report directly to the governor or the governor’s designee. The governor’s powers during an emergency are significant. Indeed, Tenn. Code Ann. § 58-2-105 states that nothing in Title 58 can be construed as impinging on the authority of the governor “to proclaim martial rule or exercise any other powers vested in [him or her] under the constitution, statutes, or common law of this state.”
Tenn. Code Ann. § 68-1-204 provides that in the event of an emergency involving a disease that may evolve into an epidemic, the Commissioner of Health “shall” make “appropriate recommendations to the governor” involving the proper allocation of resources. Tennessee already has a well-developed system of district and county health directors and officers who would play critical roles in the face of an epidemic and/or pandemic event.31
County health directors are appointed by the Commissioner of Health with the concurrence of the county mayor.32 Qualified physicians may serve as both county director and county health officer. It is the duty of a county health director to “take actions and make determinations necessary to properly execute the state department of health’s programs, and adequately enforce the rules and regulations established by the commissioner and county board of health.”33
Of course, frontline health care practitioners play a critical role in both identifying the presence of an epidemic or pandemic disease and in preventing its spread. Tenn. Code Ann. § 68-5-102 requires such providers to notify health care authorities should they become aware of or suspect that a person has a communicable disease.34 Upon notification of the appearance of such a disease, municipal and county health authorities have a duty to implement rules and regulations promulgated by the department of health with the goal of preventing and restricting the disease.35 In the event of the death of a person with such a suspected or documented disease, a medical practitioner must notify individuals to whom a body is delivered that the individual had a “suspected communicable, contagious or infectious disease.”36
It is at the point of discovery that a communicable contagious disease has appeared in the community that utilization of isolation and/or quarantine may come into effect.37 At that time, local health authorities have a duty “to confirm or establish the diagnosis, to determine [its] source or cause … and to take such steps as may be necessary to isolate or quarantine” the individual or premises where the patient is found consistent with rules and regulations, promulgated by the department of health.38 Development and promulgation of such rules and regulations is authorized by Tenn. Code Ann. § 68-5-104 (a)(2).
Some Applicable Regulations
As is the case with most exercises in statutory construction, Tennessee’s Rules and Regulations (TRR 2020 Edition) inform a study of the Code and flesh out methods of applying the same. Rules and Regulations concerning isolation and quarantine are found in Chapters 1200-14-01-.01 et seq and 1200-14-4-.01 et seq.39
Tennessee’s Rules and Regulations define a communicable disease as “[a]n illness caused by an infectious agent or disease transmitted directly or indirectly to a well person by an infected person or animal or through an intermediate animal host or vector or inanimate environment.”40
TRR § 1200-14-01-.01(1)(k) defines an epidemic as the occurrence of an illness in a community or region “that is in excess of normal expectancy.” The regulations describe isolation as follows:
The separation for the period of communicability of infected persons, or persons reasonably suspected to be infected, from other persons, in such places and under such conditions as will prevent the direct or indirect conveyance of the infectious agent from infected persons to other persons who are susceptible or who may spread the agent to others.41
Quarantine is a somewhat different concept and is defined in TRR § 1200-14-01-.01(1)(w) as:
Limitation of freedom of movement or isolation of a person or preventing or restricting access to premises upon which the person, cause, or source of a disease may be found, for a period of time as may be necessary to confirm or establish a diagnosis, to determine the cause or source of the disease, and/or to prevent the spread of the disease. These limitations may be accomplished by placing a person in a healthcare facility or a supervised living situation, by restricting a person to the person’s home, or by establishing some other situation appropriate under the particular circumstances.
As required by Tenn. Code Ann. § 68-5-102, TRR § 1200-14-01-.02 provides that health care providers and other individuals suspicious of the presence of a reportable disease must relay that concern to the Department of Health. Also, consistent with the Code, TRR § 1200-14-01-.06 mandates that an attending physician must, upon diagnosing a contagious or communicable disease, advise the head of the household where such an individual is living, or appropriate personnel at a health care facility, of the diagnosis and instruct individuals present there regarding isolation and disinfectant procedures designed to stop the spread of the infection. Those same measures should be taken if the attending physician even suspects the presence of a communicable disease. Notably, only physicians or other individuals specifically authorized by state law, have “the authority to establish quarantine or isolation, or [to] remove established quarantine or isolation restrictions.”42
On the local level, TRR § 1200-14-01-.15 describes the duties of local health officers and the commissioner or his designee in the event they receive a report of a suspected epidemic. Those steps include: collecting specimens to identify individuals who may have been exposed to the source of the disease; obtaining information in order to notify all persons potentially exposed to the communicable disease; conducting “a complete epidemiological investigation”; and establishing appropriate control measures, which significantly may include use of isolation and quarantine.43
Local health authorities must obey and enforce the provisions of TRR § 1200-14-01-.01 et seq., and in the event they do not, and it is apparent that an epidemic may be taking place or threatening to spread, it becomes the duty of the Department of Health to carry out such measures as required by law at the financial expense of the respective local governmental body that has failed to perform its duties at the time.44
Other definitional provisions found in TRR § 1200-14-4-.02 set out additional important concepts necessary for understanding the legal measures, which may come into play in the course of a serious disease outbreak.
For example, an emergency occurs when a person or premises constitutes imminent danger to the public’s health, “unless [a] person is immediately separated from other persons or access to a premises is prevented or restricted.” Importantly, separation or quarantine measures are taken only when there are no less restrictive alternatives available.45
Also, among these definitional provisions is the concept of a “health threat to others.” Under the Rules and Regulations, this is defined as the possibility of endangerment to other persons because of the failure or unwillingness of a disease carrier to conform his behavior to a standard which could avoid “serious illness, disability or death” to other persons.46
In the event that a health care provider concludes that an individual poses a health threat to others because of his failure to act responsibly, the provider has a mandatory duty to report that development to the commissioner.47 Should a person not cooperate with authorities by providing records or other information necessary to control the spread of a disease, the local health officer or the commissioner may petition the General Sessions Court for an order requiring the disclosure of the necessary information.48 Further, should the disease-carrier pose a health threat and be preparing to travel either interstate or internationally in an attempt to avoid treatment or comply with isolation and/or quarantine measures, that person is deemed to have waived medical confidentiality and Tennessee officials are authorized to contact health authorities in other jurisdictions.49
The intervention of the legal system in dealing with severe disease outbreaks is addressed in TRR § 1200-14-4-.01 et seq. A critical concept there is known as a health directive.50 A health directive is issued by the commissioner or a health officer with the goal of directing disease carriers or operators of premises where a disease may be present “to cooperate with health authorities’ efforts to prevent or control transmission of a disease that poses a health threat to others.”51 Health directives may issue when competent medical investigators, or the commissioner or health officers, “reasonably believe[ ]” that “a health threat exists.”52 Health directives involve various measures including isolation and/or quarantine of individuals who may have become ill or who may have been exposed to the disease; or alternatively preventing access to places where the cause or source of the disease may be present. Health directives may not result in an individual being held or detained in a correctional facility.53
The failure of a disease carrier or the owner or operator of a particular premises to comply with a health directive provides the basis for the filing of a petition in the appropriate General Sessions Court seeking “a temporary hold” in the event of an emergency and/or a public health measure.54 A public health measure is an order from a General Sessions Court designed “to prevent the spread of a disease that poses a health threat to others” directed at a disease carrier or the owner or operator of premises where an infectious agent has been shown to be present.55 Tenn. Code Ann. § 68-1-203 provides that it is a Class B misdemeanor to evade or disregard quarantine or indeed to violate rules or regulations instituted to prevent the spread of a disease.56 Class B misdemeanors are punishable by fines and jail sentences of up to six months.57
However, after a health directive is issued, but before a petition is filed in General Sessions Court seeking a public health measure in the form of commitment to the custody of the commissioner, an infected individual or premises owner may request a review by the Office of Chief Medical Officer of the Department or his/her designee whose review must be completed within 24 hours.58 A person receiving a health directive “may also request that the conditions of the directive be obtained in the form of a public health measure.”59 Of course, public health measures are issued by a General Sessions Court.60 Also, it must be pointed out that the initial health directive “shall employ the least restrictive alternative” available based on medical science, designed to protect the public and prevent further spread of the disease.61 The Rules and Regulations specifically state that legal counsel may consult with and assist those against whom a health care directive is applied.62
TRR § 1200-14-4-.05(1) provides for an emergency proceeding upon a petition filed by “the Commissioner or [a] health officer” in the appropriate General Sessions Court, at which the judge may issue an order authorizing a civil arrest and placement of an individual in an appropriate healthcare facility “for examination, isolation and/or appropriate treatment” or prevention or restriction to a premises.”
The emergency civil arrest of a person suspected of posing a health threat to others or the quarantine of a premises which may pose a danger may continue no longer than five days before a hearing is held in General Sessions Court.63 At that scheduled hearing, the commissioner or a health officer may request a public health measure or continuation of the emergency hold for no more than ten additional days before the required hearing.64 Under no circumstance may a temporary emergency hold remain in place for longer than 15 days without a hearing on the requested public health measure being held.65 The commissioner or a designated health official must provide reasonable cause based on clinical evidence that either the carrier or the premises poses an imminent health threat.66
In the absence of an emergency hold proceeding, the legal process involves the filing by the appropriate health official of a petition in the General Sessions Court of the county where a carrier or premises is located supported by adequate affidavits and setting out the type of relief sought.67 Before a public health measure seeking commitment to the Department of Health is even sought in court, a health officer seeking such relief must notify the Department of Health’s chief medical officer or his/her designee in the Health Services Administration and present the underlying facts supporting the request for commitment. This requirement may be avoided “in compelling, extreme, and unusual circumstances” in which case notification to the reviewing officials must take place as soon thereafter as possible. Upon receipt of the underlying information and following consultation with appropriate experts, the chief medical officer has 24 hours within which to make a decision regarding whether a petition seeking a commitment may go forward.68
In addition to setting out the grounds and facts establishing a health threat to others, the petition must allege that “a public health measure is the least restrictive alternative.”69 The potential terms of a public health measure are also set out there and include placement in an appropriate institutional facility or some other sort of supervised living situation until such time as the department’s chief medical officer or his/her designee determines that such measures are no longer warranted.70 Alternatively, the individual may be placed in “an appropriate facility or other supervised living situation” and “under designated conditions” until the patient completes the proper course of treatment as determined by the chief medical officer, or his designee, or is released to continue medical treatment in a less restrictive setting.71
The hearing on a petition for a public health measure shall be heard no earlier than five days following service on the affected individual. That person shall be advised of certain rights including the right to counsel “and if indigent, to counsel appointed by the court.”72 The Department of Health must present its case by clear and convincing evidence.73 An individual affected by the order of the court may appeal that decision or file a petition for the writ of habeas corpus in the appropriate court. The department itself may appeal the decision of the Sessions Court. Meanwhile the order of the court remains in effect until appeals or rulings on the writ are concluded.74
If the court orders an individual committed to the custody of the commissioner for placement in a proper treatment or living situation, the chief medical officer or his/her designee must review the treatment plan and subsequent progress reports with the appropriate health officer and then make a determination regarding the need for continued commitment to the approved living situation. Every 92 days, the chief medical officer or his designated physician representative must send written notification to the affected individual, his guardian or representative and to the appropriate health officer concerning his determination as to whether continued commitment or supervised living is necessary.75
An individual may not be committed to the custody of the commissioner because of the circumstances just described for longer than six months unless a second petition for continued commitment is filed in the appropriate General Sessions Court. The initial commitment shall remain in effect until such time as a hearing has been conducted and the court has issued an order discontinuing the commitment. A petition for continued commitment may be filed as many times as needed for the protection of the public health and a commitment may remain in effect for as long as the court believes that reasonable cause, based on the appropriate proof, indicates a substantial likelihood that a carrier poses a public health threat. Again, the burden of proof at such a hearing is for the state “by clear and convincing evidence.”76
Rights Under Quarantine or Isolation
A sincere concern over impingement of important constitutional rights as a result of court-ordered isolation and/or quarantine is both understandable and valid. Importantly, however, and in addition to the provisions discussed earlier requiring a least restrictive setting, the right to counsel, and a speedy hearing, TRR §1200-14-4-.08 sets outs nine specific rights afforded to individuals placed into the custody of the Department of Health. One of these rights specifies that even within a quarantined environment, “[a] patient shall be provided the maximum freedom possible” and that “[l]imitations on a patient’s freedom are permitted only when reasonably necessary to protect the health of others in the facility or the public health.”77 The Patient Bill of Rights also specifies that “[n]o patient placed in confinement pursuant to these Rules shall, solely by reason of such placement, be denied the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, and vote, to the extent that such activities can be undertaken without jeopardizing the public health.”78 Notably, the Patient Bill of Rights specifies that even if a patient is confined in quarantine or isolation for public health reasons, treatment for the disease can only be administered with that patient’s consent.79
Obviously, any quarantine or isolation efforts balance the needs of society as a whole with the personal liberties of the individual. The Patient Bill of Rights acts to balance these interests by limiting confinement to the least restrictive method possible. In actuality, this translates into a purely physical restriction of free movement while still preserving the patient’s ability to interact with others and act through agents or intermediaries. Concern over the potential threat to liberty that confinement poses is only to be expected. However, the Patient Bill of Rights and the other procedural safeguards set forth above should alleviate many of the concerns created by a mandatory isolation and/ or quarantine in the instance of an emergency situation.80
Isolation and quarantine are among the non-pharmaceutical weapons available to both state and federal governments should the expected virulent flu virus or pandemic disease appear and spread worldwide. Use of these social distancing techniques has been effective in the past and is a part of the defenses available to us for use in avoiding a flu catastrophe such as that which occurred in 1918 and 1919. Although the framework for implementing these techniques is well- established in Tennessee statutes and regulations, much of the implementation relies on the expertise of health professionals already in a position to make certain determinations. State and local governments should familiarize themselves with the procedures and ensure that they are prepared for the effective implementation of quarantine or isolation prior to the flu virus or pandemic disease making its inevitable appearance. Perhaps just as important is an explanation to the public at large well in advance of a pandemic as to why isolation and quarantine could save many lives. It is fair for citizens to question why they should abide by mandatory isolation and quarantine orders in light of this country’s historic emphasis on personal freedoms. However, clear explanations, both in advance of an outbreak and at the time of such an event, of why these steps are critical to preservation of life and are strongly limited by the Patient Bill of Rights found in TRR §1200-14-4-.08 could serve to allay fears concerning loss of constitutional rights.
Finally, since little has been written in Tennessee on this subject, readers are vigorously encouraged to undertake their own study of the statutory and regulatory provisions set out above. The law is still only theoretical until tested, and any errors or omissions in forethought should be studied and addressed before the next severe outbreak, rather than after any attempts at quarantine or isolation have already failed.
WILLIAM O. SHULTS is a 1975 graduate of the Cecil C. Humphreys School of Law at the University of Memphis. He served as a commissioner on the Tennessee Claims Commission between 2006 and 2017. Prior to that, he practiced as an attorney in East Tennessee. Between 1985 and 1991 he served on the staff of the chairman of the National Labor Relations Board and in the Legal Department of the United Mine Workers of America in Washington, D.C.
MICHAEL CASKEY is a 2013 graduate of The University of the South in Sewanee, Tennessee, and a current law student at the University of Tennessee College of Law in Knoxville, as part of the Class of 2020. He currently works as an extern at the Attorney General’s Office in Nashville and as an executive editor for the Tennessee Law Review Journal.
1. Jeffery K. Taubenberger and David M. Morens, “1918 Influenza: The Mother of All Pandemics,” 12 Emerging Infectious Diseases 15, 21 (January 2006), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3291398/; see generally Alan Cypress, The Fatal Strain: On the Trail of Avian Flu and the Coming Pandemic (Viking, Penguin Group, 2009) (explaining why a flu pandemic is an inevitable occurrence).
2. See Sigal Samuel, “We Never Really Got Rid of the Plague. 3 People in China Just Caught It,” Vox (Nov. 20, 2019) https://www.vox.com/future-perfect/2019/11/14/20963154/plague-china-pneumonic-bubonic-pandemic-preparedness.
3. Emily Feng & Amy Cheng, “China Reports 3 Cases of the Most Dangerous Type of the Plague,” NPR (Nov. 15, 2019) https://www.npr.org/sections/goatsandsoda/2019/11/15/779526827/china-reports-2-cases-of-the-most-dangerous-type-of-plague.
4. See id.
5. Zhuang Pinghui, “How the Sars Outbreak Changed Mainland China,” South China Morning Post (Feb. 20, 2013, 12:00 a.m.), https://www.scmp.com/news/china/article/1154190/how-sars-outbreak-changed-mainland-china; see also Laurie Garrett, “The Real Reason to Panic About China’s Plague Outbreak,” Foreign Policy (Nov. 16, 2019), https://foreignpolicy.com/2019/11/16/china-bubonic-plague-outbreak-pandemic/ (“Rather than being concerned about the germs and their spread, the [Chinese] government seems mostly motivated by a desire to manage public reaction about the disease.”).
6. But see Emily Feng, “Angry Chinese Ask Why Their Government Waited So Long to Act on Coronavirus,” NPR: All Things Considered (Jan. 29, 2020), https://www.npr.org/2020/01/29/800938047/angry-chinese-ask-why-their-government-waited-so-long-to-act-on-coronavirus (reporting that, despite China’s rapid mobilization in responding to the COVID 19, the initial response was delayed for various reasons including local conflict with the Central Government, scientific uncertainty, and overriding political interests at various levels).
7. See sources cited supra note 1.
8. See R.E.G. Upshur, “Principles for the Justification of Public Health Intervention,” 93 Can. J. Pub. Health 101, 101-02 (2002) (articulating four ethical “principles” through which individual freedoms may be justifiably restricted by public intervention — namely, when (1) an individual presents a risk of harm to society, (2) that harm is prevented by the least restrictive means, (3) the restricting entity reciprocally aids the individual in response to collateral effects of intervention, and (4) the method of intervention is agreed by affected stakeholders beforehand in an open and transparent decision-making process)
9. Betsy McKay, “This Flu Season Is Severe, and Far From Over,” The Wall Street Journal (Jan. 12, 2018, 3:48 p.m.), https://www.wsj.com/articles/this-flu-season-is-severe-and-far-from-over-1515783520.
10. See id.
11. See William Schaffner, M.D., Vanderbilt University Medical Center Department of Health Policy, https://www.vumc.org/health-policy/person/william-schaffner-md (last visited Oct. 25, 2019) (paraphrased attribution taken from personal interview with the author in 2015); accord Khalida Sarwari, “Here’s What You Need to Know about the Coronavirus Outbreak,” News@Northeastern (Feb. 3, 2020), https://news.northeastern.edu/2020/02/03/separating-fact-from-fear-in-the-coronavirus-outbreak (“If we want to talk about pandemics, influenza is the pandemic we should be talking about. … When we look at the number of cases of influenza [in the United States], the number of deaths far, far overshadows the morbidity and mortality associated with coronavirus” (quoting Dr. Shan Mohammed, clinical professor of health sciences at Northeastern University).
12. The CDC is an essential resource for any individual or entity dealing with either an epidemic or pandemic. Its website contains a wealth of information addressing all aspects of influenza and how to effectively deal with it. See “Influenza (Flu),” CDC, www.cdc.gov/flu (last visited Feb. 5, 2020).
13. Candy Sagon, “A Conversation with Tom Frieden,” AARP Bulletin, April 2016, https://www.aarp.org/politics-society/advocacy/info-2016/talking-with-cdc-director-tom-frieden.html.
14. This brief article is devoted to a discussion of state law as it provides for use of isolation and quarantine. The same concepts are also discussed in 42 U.S.C. § 264 and 42 C.F.R. 70.6 in connection with the federal approach to stopping the spread of a serious epidemic or pandemic flu outbreak. An epidemic is usually defined as an infectious disease that affects only one country. A pandemic involves a disease that spreads to more than one nation or continent and, as was the case in 1918 and 1919, perhaps to the entire world.
15. See Center for the History of Medicine, “1918 Influenza Escape Communities,” U. Michigan Medical School Center for the History of Medicine, http://chm.med.umich.edu/research/1918-influenza-escape-communities (last visited July 20, 2019); Lawrence Gostin, “Public Health Strategies for Pandemic Influenza: Ethics and the Law,” 295 JAMA 1700-04 (Apr. 12, 2006); N. Ferguson et al., “Social Distancing During a Pandemic Not Sexy but Sometimes Effective: Social Distancing and Non-Pharmaceutical Interventions,” 27 Vaccine 6383 (2009).
16. See Patrick R. Saunders-Hastings and Daniel Krewski, “Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission,” 5 Pathogens Open Access Journal 66 at 3-4 (December 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5198166/pdf/pathogens-05-00066.pdf (“[W]hile the broad estimated mortality range highlights problems with data collection, missing records and misdiagnosis, it still provides a sense of the severity of the pandemic.”); “Influenza (Flu): 1918 Pandemic (H1N1 Virus),” CDC (Mar. 20, 2019), https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html.
17. Entry on Nashville, Tennessee, “The American Influenza Epidemic of 1918-1919: A Digital Encyclopedia,” Influenza Encyclopedia, www.influenzaarchive.org/cities/city-nashville.html (last visited July 22, 2019).
18. Allen R. Coggins, “Influenza Pandemic of 1918-1919,” Tennessee Historical Society’s Tennessee Encyclopedia, https://tennessee
encyclopedia.net/entries/influenza-pandemic-of-1918-19 (last updated Mar. 1, 2018).
19. See Tom Quinn, Flu: A Social History of Influenza 167-71 (2008); see also Saunders-
Hastings and Krewski, supra note 17.
20. Compare “Frequently Asked Questions About SARS,” CDC (May 3, 2005), https://www.cdc.gov/sars/about/faq.html (“To date, no cases of SARS have been reported among persons who were exposed to a SARS patient before the onset of the patient’s symptoms.”), with “How Flu Spreads,” CDC (Aug. 27, 2018), https://www.cdc.gov/flu/about/disease/spread.htm (“People with flu are most contagious in the first three to four days after their illness begins. Most healthy adults may be able to infect others beginning 1 day before symptoms develop and up to 5 to 7 days after becoming sick.”).
21. Robert Roos, “Estimates of SARS Death Rates Revised Upward,” U. Minn. Ctr. for Disease Research and Pol’y (May 7, 2003), http://www.cidrap.umn.edu/news-perspective/2003/05/estimates-sars-death-rates-revised-upward.
22. See “Coronavirus: Transmission,” CDC, https://www.cdc.gov/coronavirus/about/transmission.html (last visited Feb. 6, 2020) (“[W]ith most respiratory viruses, people are thought to be most contagious when they are most symptomatic (the sickest). With COVID 19, however, there have been reports of spread from an infected patient with no symptoms to a close contact” (citation omitted)).
23. “Estimates of Flu Coverage Among Adults – United States 2017-18 Flu Season,” CDC (last updated Nov. 5, 2018), https://www.cdc.gov/flu/fluvaxview/coverage-1718estimates.htm.
24. “Estimates of Flu Coverage Among Adults – United States 2018-19 Flu Season,” CDC (last updated Sep. 6, 2019), https://www.cdc.gov/flu/fluvaxview/coverage-1718estimates.htm.
25. “Estimates of Flu Coverage Among Children – United States 2017-18 Flu Season,” CDC (last updated Oct. 5, 2018), https://www.cdc.gov/flu/fluvaxview/coverage-1718estimates-children.htm (covering vaccination rates for children aged from six months to 17 years).
26. Tenn. Dep’t of Health, “Results of the 2018 Immunization Status Survey of 24 Month Old Children in Tennessee,” 33-34 (Feb. 2019), https://www.tn.gov/content/dam/tn/health/documents/annual-reports/2018-Annual-Imm-24-Month-Old-Survey.pdf (dividing result by regional areas comprising several counties or a single county surrounding a metropolitan area such as Nashville, Memphis or Chattanooga). Note that according to this same survey, the percentage of children who received at least three doses of influenza vaccine (or three consecutive years since birth) is significantly less than those who received one or two (or one to two years).
27. “Disease Burden of Influenza,” CDC (last updated Jan. 10, 2020), https://www.cdc.gov/flu/about/burden/index.html.
28. Acts 2006, Ch. 588, 82.
29. Tenn. Code Ann. § 68-1-201(a)(2).
30. Tenn. Code Ann. § 68-1-201(b)(2).
31. See Tenn. Code Ann. §§ 68-2-603 and 68-2-704.
32. Tenn. Code Ann. § 68-2-603(a)-(b).
34. Excluded from this mandatory reporting requirement is a patient who may have contracted a venereal disease. See Tenn. Code Ann. § 68-5-102.
35. Tenn. Code Ann. § 68-5-103.
36. Tenn. Code Ann. § 68-5-102.
37. Tenn. Code Ann. § 68-5-104(a)(1).
39. Citations to the Tennessee Rules and Regulations will be as follows: TRR __.
40. TRR § 1200-14-01-.01(e).
41. TRR § 1200-14-01-.01(s).
42. TRR § 1200-14-01-.06.
43. TRR § 1200-14-01-.15.
44. N ADC § 1200-14-01-.27.
45. See TRR § 1200-14-4-.02(9).
46. TRR § 1200-14-4-.02(12).
47. TRR § 1200-14-4-.03(1).
48. TRR § 1200-14-01-.15(4).
49. TRR § 1200-14-4-.03(2).
50. TRR § 1200-14-4-.04(1).
53. TRR § 1200-14-4-.04(2).
54, TRR § 1200-14-4-.04(4).
55. TRR § 1200-14-4-.02(16).
56. The statutory scheme in Tennessee does not address the practicalities of jailing a potentially infected individual without further spreading the disease among other inmates or whether such a defendant could be allowed bail given the possible spread of infection. A charge for a Class B Misdemeanor would give a court legal authority to obtain a warrant against the potentially infected individual, which would effectively remove the person from the general population. The interplay between criminal detainment and civil prevention with respect to quarantine and isolation has not been clearly defined under the current statutory and regulatory scheme. But see TRR § 1200-14-04-.04(2) (specifying that isolation/quarantine under a health directive shall not result in detainment in a correctional facility).
57. Tenn. Code Ann. §§ 40-35-111 and 68-1-203.
58. TRR § 1200-14-4-.04(7).
60. TRR § 1200-14-4-.02(16).
61. TRR § 1200-14-4-.04(8).
62. TRR § 1200-14-4-.04(9).
63. TRR § 1200-14-4-.05(2).
65, TRR § 1200-14-4-.05(3).
66. TRR § 1200-14-4-.05(1).
67. TRR § 1200-14-4-.06(1).
68. TRR § 1200-14-4-.07(1).
69. TRR § 1200-14-4-.06(2).
70. TRR § 1200-14-4-.06(2)(g).
71. TRR § 1200-14-4-.06(2)(h).
72. TRR § 1200-14-4-.06(3)(d).
73. TRR § 1200-14-4-06(1).
74. TRR § 1200-14-4-.06(4).
75. TRR § 1200-14-4-.07(2).
76. TRR § 1200-14-4-.07(3).
77. TRR §1200-14-4-.08(6).
78. TRR §1200-14-4-.08(5).
79. TRR §1200-14-4-.08(3).
80. See generally R.E.G. Upshur, supra note 8.
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