{"id":1096,"date":"2020-10-27T17:24:57","date_gmt":"2020-10-27T17:24:57","guid":{"rendered":"https:\/\/www.justinian.com\/?post_type=blog&p=1096"},"modified":"2021-06-24T23:00:24","modified_gmt":"2021-06-24T23:00:24","slug":"can-i-sue-someone-for-giving-me-covid-19","status":"publish","type":"blog","link":"https:\/\/www.justinian.com\/es\/personal-injury-blog\/can-i-sue-someone-for-giving-me-covid-19\/","title":{"rendered":"Can I Sue Someone For Giving Me COVID-19?"},"content":{"rendered":"\n

With global attention directed to the Covid-19 coronavirus global pandemic<\/a>, worldwide efforts to reduce the spread of the virus have involved increasingly stringent and much-debated social distancing and quarantine requirements by national and local governments.<\/p>\n\n\n\n

With the possibility that individuals may infect other individuals, either intentionally or by failing to take proper precautions, it is worth examining whether criminal or tort liability might apply to such behavior, and to what degree a victim might be able to recover for the harm.<\/p>\n\n\n\n

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Factual Background of the Covid-19 coronavirus Pandemic<\/h2>\n<\/div>\n\n\n\n
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Covid-19 is a new infection<\/a> that was first detected by doctors in Wuhan, China, where several hospital patients presented an unrecognized type of pneumonia. Although some researchers speculate it may have spread from an animal to humans<\/a>, the exact nature of the virus is an emerging unknown.<\/p>\n\n\n\n

Since the Covid-19 strain of the coronavirus was only first described in December 2019, immunology scientists, infectious disease experts have raced to study its effects in real time.<\/p>\n\n\n\n

Cures<\/a> and vaccines<\/a> both still seem to be very much in the testing phase. Early estimates<\/a> of the Covid-19 coronavirus\u2019 ability to survive on a surface are continuously revised<\/a>, and its apparent susceptibility to heat lead some to speculate that warmer weather<\/a> will help diminish the Coronavirus pandemic, although Covid has been detected in Africa<\/a> and other places with hot and humid weather<\/a>.<\/p>\n\n\n\n

With the data in flux<\/a>, everyone from physicians to politicians to pundits seems to dispute exactly how much risk Covid-19 poses, and whether that risk justifies<\/a> the stoppages and economic harms that will likely be incurred<\/a> by measures such as lockdowns and quarantines<\/a>.<\/p>\n<\/div>\n<\/div>\n\n\n\n

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Misinformation And The Covid-19 coronavirus<\/h3>\n\n\n\n

Beyond the many scientific unknowns concerning this strain of Coronavirus, political considerations have influenced reports of the risks and realities of Covid-19, including even what to call the virus.<\/p>\n\n\n\n

The People\u2019s Republic of China and Underreporting of the COVID-19 Coronavirus<\/h3>\n\n\n\n

Officials in the People\u2019s Republic of China appear to have ignored and deleted doctors\u2019 warnings<\/a> of an unconventional pneumonia when it first appeared in Central China. The country\u2019s alleged cover up may have allowed<\/a> the virus to spread to other Asian countries and beyond.<\/p>\n\n\n\n

Accordingly, parties emphasizing China\u2019s role in the spread of the virus refer to Covid-19 as the \u201cWuhan Virus.\u201d Such a moniker likely also helps de-emphasize their own delay in identifying and responding to the growth of Covid-19 from local matter to global pandemic.<\/p>\n\n\n\n

Even the World Health Organization (WHO) has grappled with Covid-19 coronavirus misinformation, receiving criticism<\/a> for repeating<\/a> China\u2019s initial downplaying of the virus, and naming the disease to avoid reference to<\/a> its genetic cousin, the SARS virus<\/a> that became epidemic<\/a> in 2003.<\/p>\n\n\n\n

Medical Information Is Often Misreported<\/h3>\n\n\n\n

Beyond political considerations, healthcare misinformation<\/a> is already its own kind of epidemic, and accordingly myths<\/a> about Covid-19\u2019s origin, nature and possible preventive measures or remedies have been widespread<\/a>.<\/p>\n\n\n\n

Thus, while researchers and those on the front lines of Covid-19 have made tremendous accomplishments in combating the virus, a great deal remains unknown about it, and uncertainty may prove a major obstacle to sanctioning a Covid-19 transmission under the law.<\/p>\n\n\n\n

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A Covid-19 Coronavirus Transmission Might Give Rise To Liability In Texas<\/h2>\n<\/div>\n\n\n\n
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There are a number of legal theories under which a defendant\u2019s transmission of the Covid-19 virus to another might be sanctionable, nationally and in Texas specifically, under both criminal and tort regimes.<\/p>\n\n\n\n

Transmitting Covid-19 in Texas Might Be a Negligent or Intentional Battery<\/h3>\n\n\n\n

The Duty To Warn<\/h4>\n\n\n\n

A duty to warn<\/a> of an infectious condition has been imposed<\/a> upon carrier-defendants in negligence cases. Carriers of an infection need not expressly lie about their condition, simply saying nothing about it can breach the standard of care they owe<\/a> to others who might foreseeably be exposed.<\/p>\n\n\n\n

Although a physician<\/em>\u2019s duty to warn generally applies<\/a> only to a patient, in the case of communicable disease, doctors often have duty to warn (either directly or via public agencies) third parties who are foreseeably at risk of exposure, including the patient\u2019s family<\/a>.<\/p>\n\n\n\n

Complicating the situation that doctors\u2019 duty to warn is at odds with their obligation to preserve a patient\u2019s confidentiality<\/a>, a dilemma faced by medical practitioners whose patients test positive for HIV and neglect or refuse to warn<\/a> their cohabitants or sexual partners.<\/p>\n<\/div>\n<\/div>\n\n\n\n

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Referencial<\/figcaption><\/figure>\n\n\n\n

Civil tort law in Texas<\/a> and many other states<\/a> recognizes a court claim for damages<\/a> on the basis of negligent or intentional<\/a> transmission of a sexually transmitted disease, even within a marriage<\/a>. Some have even advocated for strict liability<\/a> to apply to transmissions of a sexually transmitted disease, placing the burden on carriers to disclose adequately to their sex partners that engaging in such behavior involves the risk of contracting a disease.<\/p>\n\n\n\n

Furthermore, under Texas state law<\/a>, although adult patients are permitted to refuse medical care for reasons of faith, even in the case of a communicable disease<\/a>, they must comply with official quarantines<\/em> or face liability, and failing to do so might constitute negligence per se<\/a>.<\/p>\n\n\n\n

Thus at least theoretically, there are several ways in which contracting or transmitting the Covid-19 coronavirus might give rise to civil legal liability, even unintentionally if the Covid-19 carrier or a physician failed to warn, or the carrier acted recklessly in exposing others. In keeping with general negligence principles<\/a>, under Texas case law, the statute of limitations on a civil action for the transmission of an infection begins to run once the recipient becomes informed of<\/a> having contracted the infection.<\/p>\n\n\n\n

Knowingly Transmitting Covid-19 To Someone In Texas Might Be Criminal<\/h3>\n\n\n\n

In traditional common law, the use of a deadly weapon during an assault was offered as evidence of the assaulting party\u2019s state of mind<\/a>; defendants\u2019 willingness to use a tool or method that might<\/em> cause death or grievous bodily harm supported inferring they had intended<\/em> to do so.<\/p>\n\n\n\n

Thus use of a deadly weapon during assault thus represented an elevated degree of severity<\/a>.<\/p>\n\n\n\n

Similarly, under Texas criminal law<\/a>, use of a deadly weapon during the commission of an assault enhances the seriousness<\/a> of the crime to aggravated assault<\/a>, a second class felony punishable by up to twenty years in jail<\/a> under the Texas sentencing guidelines.<\/p>\n\n\n\n

As recently as 2006, both saliva<\/a> and seminal fluid<\/a> containing the HIV virus<\/a> have been deemed deadly weapons for purposes of aggravated assault in Texas. In fact, actual transmission of the disease is not required<\/a> to constitute use of a deadly weapon.<\/p>\n\n\n\n

As the Texas Appellate Court noted<\/a>, aggravated assault law \u201cdoes not require that a deadly weapon actually be used against anyone or even that anyone be in a \u2018zone of danger,\u2019 but merely that a deadly weapon be exhibited or used and that someone be in some danger.\u201d Moreover, objects that are not traditionally thought of as weapons can become deadly weapons<\/em> if they are used in a manner likely to cause death or bodily injury<\/a>.<\/p>\n\n\n\n

Therefore knowingly or recklessly transmitting the Covid-19 coronavirus to someone in Texas during an assault might constitute aggravated assault under Texas civil and criminal law.<\/p>\n\n\n\n

Proving A Criminal or Civil Case for Exposure To COVID-19<\/h3>\n\n\n\n

As with all legal cases sanctioning the transmission of an infection<\/a>, collecting and presenting evidence to prove the elements is complicated by the fact that the events are intangible and material evidence is microscopic<\/a>.<\/p>\n\n\n\n

Even among scientific experts, many questions about Covid-19 remain, including the virus\u2019 effects and manner of transmission. Even confirming that an individual has contracted the disease has been a point of controversy, and several countries<\/a> have reported that tests thought to be reliable are failing<\/a> to detect up to seventy-percent of actual positive cases of Covid-19 coronavirus<\/a>.<\/p>\n\n\n\n

This lack of certainty in the factual record presents a significant challenge to proving elements such as mental state<\/a> and causation<\/a> in a criminal prosecution or civil action against a defendant who transmitted the Covid-19 coronavirus.<\/p>\n\n\n\n

Showing that a person with Covid-19 breached<\/a> a duty of care<\/a> by ignoring a foreseeable risk may prove problematic when even healthcare experts still have questions<\/a> how Covid-19 coronavirus can be transmitted. Simply to sue in a Texas civil court, under the open courts provision<\/a> of the Texas Constitution<\/a> a plaintiff must describe the injury<\/em><\/a> suffered by defendant\u2019s negligence, and any compensation<\/a> or punitive damages<\/a> are based on being able to prove it.<\/p>\n\n\n\n

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Elements of a Personal Injury Lawsuit for COVID-19 Exposure or Transmission<\/h3>\n<\/div>\n\n\n\n
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Based on prior laws governing battery and infection, any civil lawsuit involving a Covid-19 coronavirus infection or transmission, the plaintiff must show it is more likely than not that:<\/p>\n\n\n\n