Immunity from what?

The court started its opinion by stating the following.

This case presents a matter of first impression: whether the civil and criminal immunity applicable to physicians… under Virginia Code Sec. 32.1-38 is limited to claims arising from the act of reporting health-related confidential information to authorized state and local entities, or whether the statute provides broader immunity to include misconduct described in the reports.

In other words, if you report that one of your employees has a communicable disease, which you are mandated to do and for which you have immunity for doing so, do you also have immunity from the fact that she spread the disease to one of your patients? That is what Alipio v Fair Ridge OBGYN Associates PC et al , CL-2015-6125, April 28, 2016, was all about. The facts are as follows. Alipio received prenatal, labor, and delivery care from Fair Ridge OBGYN Associates. Upon her discharge from the hospital 2 days after giving birth, she exhibited symptoms of dizziness and abnormal blood pressure. Over the next 4 days, the symptoms got worse. The dizziness increased, and she developed nausea, vomiting, diarrhea, gastrointestinal symptoms, and a low-grade fever. She went to a different hospital where she was diagnosed with sepsis, and she remained in the critical care unit for about a week. The cause of the sepsis was exposure to group A streptococcus. This was reported to the state and county departments of health as required because it was a listed and reportable communicable disease. The source of the streptococcus was traced to an employee of the defendant, and ultimately this lawsuit was filed.

The defendant argued that the claim was barred by Virginia Code Section 32.1-38 because, as per the code, “physicians and medical care facilities who report instances of certain communicable diseases at their facilities are immune from civil liability or criminal penalty ‘connected therewith.’” In other words, they were claiming that not only were they immune from civil liability for the act of disclosing whatever Protected Health Information is disclosed as a result of the requirement to report, but also they were immune from liability as long as the plaintiff’s injury was due to simple negligence and not gross negligence or malicious intent. Their claim was interpretively an expansive reading of the statute.

The plaintiff, however, had a much narrower view of the statute, claiming that the immunity extended only to “the act of making the report or disclosure, such as patient lawsuits for breach of duty, breach of confidentiality, or defamation.” She claimed that the statute was never intended to cover negligent treatment that resulted in injury merely because one received immunity for required reporting.

The sections of the code that cover this area focus on disease prevention and control and can be found in Chapter 2, Sections 32.1-35 through 32.1-73.8. Section 32.1-35 denotes a list of diseases that must be reported, and 32.1-36 is the actual reporting requirement. Part of the reporting requirement notes that “there is no duty on the part of the physician to notify any third party other than the local health department… and a cause of action shall not arise from any failure to notify any third party.” In other words, physicians who statutorily report are not obligated to inform anyone other than the health department about whatever they are reporting, and patients cannot use the failure to disclose that they might be infected as a basis for filing a lawsuit against the doctor.

Section 32.1-38 states the following.

Any person making a report or disclosure required or authorized by this chapter, including any voluntary reports submitted at the request of the Department of Health for special surveillance or other epidemiological studies, shall be immune from civil liability or criminal penalty connected therewith unless such person acted with gross negligence or malicious intent.

The court focused on the word “therewith,” determining that the immunity only extended to liability encountered as a result of the act of reporting the information, because this is what doctors are required to do. The court also researched how other states have looked at this issue and noted that they have extended the immunity “only to claims associated with the act of self-reporting instances of certain communicable diseases, not for acts of malfeasance that may be described in the reports themselves.” (Cit. Omit.)

The court decided in favor of the plaintiff by stating that one can only conclude that the statute does not “provide civil and criminal immunity for physicians and medical practices who infect their patients with communicable diseases,” even if the transmission was a result of simple negligence.


So, one of your employees has a communicable disease. Sure, we’re all using universal precautions but sometimes… well, accidents happen. No one on your team intentionally (let’s use the statutory word: maliciously) tried to transmit the disease to a patient, at least I hope not, although we can all recall news reports when this type of thing has happened. Also, let’s assume that no one is using inappropriate barrier methodologies that are so sloppy or weak that one could consider the acts to be gross negligence. No, what happened was an act of simple negligence. Somebody had a lapse in judgment, or somebody did or didn’t do something that turned out to be not so harmless. The question is “should you be liable?” As the court noted, of course you should.

Now let’s take this to its logical extension and conclusion. We practice in the state of Oz, sometimes called California. In Oz, influenza is listed as a communicable disease, one that must be reported to the health department (Title 17, California Code of Regulations, Section 2500(i)(1)). Obviously, no one wants to be responsible for initiating or helping to spread a pandemic or even its less virulent cousin—an epidemic. Influenza, also known as the flu, has many symptoms, some mild and some more severe. You could be spreading these nasty germs for up to 2 days before you even know you have the flu. Half the time, you could just have a simple common cold, but sometimes those symptoms could be harbingers of worse things to come; you don’t really know. Do you report your employee to the health department? Yes? No? Hmm.

Now suppose that no, you didn’t report. Your staff person came in with symptoms that could have been anything—allergies, a cold, the flu, who knows. You were short staffed, and she wore a mask all day, went through 3 boxes of gloves all by herself, bathed in hand sanitizer at every opportunity, wore safety goggles, the whole 9 yards. Within a few days, several patients whom she treated came down with the flu. Should you have reported it? Here’s a better one. Now you know that she had the flu. Now you know that she transmitted it to 3 patients. You know that they are now “carriers.” Do you report their names to the health department? Hey, we’ve got ourselves a reportable communicable disease. Hmm.

Oh, here’s an even better one. A patient who received this lovely gift has a compromised immune system and winds up in the hospital, since what we thought was merely a common cold but really turned was the flu has now blossomed in this patient into pneumonia. He or she recovers, but there are costs. Are you civilly or criminally liable because you failed to report? Suppose you did report, and the person suffered the same “injury.” Are you liable? Where does this end? Hmm.

Just today, I was accused of overreaching with some of my commentaries in an attempt to make a point. Well, consider this. If we see it or if we think we see it, we are obligated to report; remember, we have reporting immunity. We all practice in our own states of Oz (sorry California, but you came to mind first). Today we are seeing a resurgence of some childhood diseases that we thought were long gone: measles, mumps, chicken pox, and so on. We have many more parents refusing to have their kids vaccinated. These kids are our patients. These kids bring germs into the office. These germs jump from person to chair and from chair to person. Should we be relearning the early signs of these maladies to be able to report them in time? (Yes, they are all on the list.)

Are we asking as part of our medical history (you are taking one or going over it, right?) whether the patient to be has had all of his or her vaccinations? Are we refusing to treat if the patient hasn’t? Hmm.

So much for a dinky little case that had nothing to it.

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Dec 19, 2018 | Posted by in Orthodontics | Comments Off on Immunity from what?
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