Sunday, October 25, 2020
Health

Op-Ed: Trump and His Doctors Are Now Legally Exposed

President Donald J. Trump greets supporters during a drive by outside of Walter Reed National Military Medical Center
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The Hippocratic Oath tells physicians to do no harm or injustice. Meanwhile, the Constitution’s presidential oath of office says the president will “preserve, protect, and defend” the Constitution. These two oaths collided during the chain of events set in motion after President Trump tested positive for the coronavirus.

The clearest example of these oaths being breached — and the subsequent legal exposure that caused — occurred on Oct. 4, when Trump, who had tested positive for the virus 3 days earlier and was still hospitalized, was allowed by his physicians to take his reckless joyride outside Walter Reed National Military Medical Center past supporters in a hermetically-sealed SUV with two Secret Service agents in the front seat. (Because the goalposts on the president’s health have moved almost daily, especially concerning who knew what and when, this article with graphics from the BBC is helpful in delineating the timeline.)

Then, after he returned to the White House the following evening, he posed on the Truman balcony, in the style of the Pope or Mussolini — taking off his mask, breathless, hair perfectly coiffed, make-up applied — and saluted the crowd. It was pure reality TV. Shortly thereafter while still infected and presumably contagious, he went from the residence to the West Wing and eventually to the Oval Office to work.

Actions of the Doctors

But before getting to his liability, let’s first look to his team of physicians at the hospital, led by Navy Cmdr. Sean Conley, DO, with “Physician to the President” embroidered on his immaculate white lab coat.

As several medical experts have opined, it was unbelievable for them to allow Trump to do what he did. Even one of the attendings at Walter Reed (not part of the medical team treating Trump), James Phillips, MD, chief of disaster medicine at George Washington University Medical Center, tweeted that allowing Trump his SUV photo-op was “insanity” and pure “theater.” But even beyond that, allowing a patient — even the president — to leave hospital grounds as we all saw Trump do on that late Sunday afternoon might now expose them to assertions of professional negligence, even unethical conduct — again, violating the oath to “do no harm.”

The legal analysis starts with the California Supreme Court case decided in 1976, Tarasoff v. Regents of the University of California. That court held mental health professionals have a responsibility and duty to protect intended individuals who are being threatened with bodily harm by a patient.

There, a student from India attending graduate classes at U.C. Berkeley, Prosenjit Poddar, met Tatiana Tarasoff. They dated, but eventually Tarasoff spurned Poddar’s advances. After this rebuff, Poddar became depressed and incurred a severe emotional crisis. He also stalked Tarasoff.

In the ensuing days and weeks, Poddar sought assistance from a psychologist with oversight by a physician supervisor, and he confided in the psychologist his intent to kill the woman. Soon thereafter, the psychologist recommended that Poddar be civilly committed as a dangerous person due to a diagnosis of paranoid schizophrenia, acute and severe.

Poddar was detained, but soon released with approval of the supervisor. A couple of months passed, though neither Tarasoff nor her parents were ever warned about Poddar’s threats. Shortly thereafter, he stabbed and killed her. He was convicted of second-degree murder, later overturned and after which he was never tried again, in exchange for his returning to his native India.

What’s HIPAA Got to Do With It?

The decision has been much debated over the ensuing decades. Most states, though, now have laws, by statute or through caselaw decisions, that either require or permit mental health professionals to disclose information about patients who may become violent and dangerous to third persons.

So while even not involving mental health, what kind of precedent is the Tarasoff case for exposing Trump’s physicians to legal liability?

Certainly Conley said Trump was not entirely “out of the woods” before discharge and they were entering “uncharted territory” with Trump having been administered significant drug therapy, some of which was only in the experimental stage. And, yes, he provided the public with some of Trump’s medical data, like oxygen levels within normal limits, or lack of fever, but he was cherry-picking them in line with Trump wanting to be seen as invulnerable to sickness and disease.

When Conley was asked when Trump last tested negative for the virus, to identify the results of any chest films and lung scans or even why Trump was given the steroid dexamethasone that is typically given to only the most serious COVID patient, he referred to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). True, this statute protects disclosure of a patient’s protected health information by healthcare providers unless the patient provides written consent. But exceptions do exist, and one of those is releasing personal health information that is necessary to serve the needs of public health and safety.

No doubt there is a direct link between the health and welfare of a president — including whether a chest x-ray or scan shows “COVID pneumonia” or not, or when the president last tested negative for the virus — and public health and national security. Conley was therefore misguided in raising the “HIPAA card.”

Trump’s lack of consent under HIPAA is not a roadblock to the independent duty owed by medical personnel having knowledge of a potentially dangerous patient impacting third parties, like the two Secret Service individuals in the SUV, even to their families, if one or more become infected. “Ah,” you say, “but these individuals are bound by oath to serve and protect the president, even to ‘take a bullet’ for him.”

Trump’s Potential Liability

It’s true that the agents have to do the best they can while protecting the president at all costs. But was wearing personal protective equipment and masks enough protection from a president’s own recklessness in being in close quarters with them while still infected with a highly contagious disease? Or was it that they assumed the risk of being exposed and sickened, as some would argue? Clearly, they had no idea to the degree to which Trump was shedding the virus.

And with physicians allowing Trump back into the White House without being completely non-contagious, just how many more people, like its chefs, housekeepers, valets, butlers and other service personnel, have they allowed him to infect?

Consider, too, Conley and his team discharging Trump on a regimen of high-powered medications that some experts opine may have affected his judgment and decision-making as president. Have these physicians done no harm? No.

This brings us to Trump’s potential liability, of course dependent on proof and evidence. As background, it is established law that a person who knows (s)he has an infectious disease and deliberately or recklessly infects another can be civilly liable, even criminally so. HIV, AIDS and HPV (the human papillomavirus) lawsuits quickly come to mind. A $1.5-million verdict awarded by an Iowa jury to an unsuspecting woman who claimed her boyfriend infected her with HPV stands out as but one example.

Trump has not been above chicanery in downplaying the virus, like while back at the residence, saying, “Don’t be afraid of COVID. Don’t let it dominate your life.” He also held an event at the White House five days after being discharged, saying the virus “is disappearing” and declaring he was COVID-free. By mocking medical science in these ways, he flouted public health guidelines that require a minimum of 10 days in quarantine from the onset of symptoms — in his case, from Oct. 1. Add to this his declaring he was “cured” by the costly drug therapy he received and tweeting he was now “immune” and “can’t give it.” Twitter even pushed back on these claims as misleading and potentially harmful, as there is no cure for the coronavirus and certainly no proven absolute immunity.

His reportedly forcing medical personnel to sign non-disclosure agreements — though they are meaningless due to HIPAA — was an additional effort to intentionally hide his medical conditions from public view.

A day later, Oct. 10, Conley issued a memo with Trump’s permission, in part reading, “…tests obtained [on Trump] reveal there is no longer evidence of actively replicating virus” — translation: Trump is not a transmission risk. But the communiqué never addressed whether Trump tested negative for the virus, whether he was COVID-free, or when he last tested negative before being first diagnosed on Oct. 1. Regardless, two days later Trump hit the campaign trail for Florida, Pennsylvania, and Iowa.

Quoting Yankees Hall of Fame great Yogi Berra, “it is like deja vu all over again” by recalling the genesis for the HIV, AIDS and HPV litigation now precedential for all those Trump may have sickened through his presence, bombastic words and deceitful statements. No more apt description thus describes him than being today’s version of a Typhoid Mary and snake oil salesman combined.

Has he carried out his constitutional duties to protect the nation and its citizens? No. And the fact that the New England Journal of Medicine recently endorsed Trump’s opponent — the first political endorsement the journal has ever made in its 208-year storied history — should tell you everything you need to know.

Miles J. Zaremski, JD, has been a healthcare attorney and writer for 47 years. He has written and lectured extensively in the healthcare law space, both nationally and abroad. He has written books and also contributed essays to the Huffington Post and to CNN’s Michael Smerconish site. He is past president of the American College of Legal Medicine and for 5 years served as chair of the American Bar Association’s Standing Committee on Medical Professional Liability.



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