Worldwide efforts to reduce the spread of the Covid-19 virus have involved increasingly stringent and much-debated social distancing and quarantine requirements by national and local governments.
According to the CDC, over 1-million U.S. citizens have died of Covid-19. And that number is expected to rise as the Omicron variant threatens to become the dominant variant in the U.S.
Considering the fact 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, to what degree a victim might be able to recover for the harm, and if you should hire an Austin personal injury lawyer to represent you if you do become positive due to the negligence of others.
Covid-19 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, the exact nature of the virus is an emerging unknown.
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.
According to a CDC report, vaccines have been very effective in reducing the risk of severe illness or death. Early estimates of the Covid-19 coronavirus’ ability to survive on a surface are continuously revised, and its apparent susceptibility to heat lead some to speculate that warmer weather will help diminish the Coronavirus pandemic.
With the data in flux, everyone from physicians to politicians to pundits seems to dispute exactly how much risk Covid-19 poses, and whether that risk justifies the stoppages and economic harms that will likely be incurred by measures such as lockdowns and quarantines.
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.
Officials in the People’s Republic of China appear to have ignored and deleted doctors’ warnings of an unconventional pneumonia when it first appeared in Central China. The country’s alleged cover up may have allowed the virus to spread to other Asian countries and beyond.
Accordingly, parties emphasizing China’s role in the spread of the virus refer to Covid-19 as the “Wuhan Virus.” 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. Even the World Health Organization (WHO) has grappled with Covid-19 coronavirus misinformation, receiving criticism for repeating China’s initial downplaying of the virus, and naming the disease to avoid reference to its genetic cousin, the SARS virus that became epidemic in 2003.
Beyond political considerations, healthcare misinformation is already its own kind of epidemic, and accordingly myths about Covid-19’s origin, nature and possible preventive measures or remedies have been widespread.
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.
There are a number of legal theories under which a defendant’s transmission of the Covid-19 virus to another might be sanctionable, nationally and in Texas specifically, under both criminal and tort regimes.
By the 1900s, the germ theory of infection was largely accepted, and since the beginning of the 20th century, United States courts have recognized that a battery (an offensive touching) can take place without direct bodily contact by transmitting a poison or an infection. Even in 1917, a husband was convicted of criminal assault for concealing from his wife that he had syphilis. His wife’s consent to sexual intercourse was held invalid because she was unaware he carried the disease.
As the body of human scientific understanding and germs themselves have grown, civil torts have been well-recognized under negligence theories for the transmission of gonorrhea, herpes and HIV. Liability has also been proposed and applied to transmitting an infectious disease under misrepresentation and fraud theories. Under nationwide and Texas state civil and criminal law, such theories of legal liability might apply to a transmission of the Covid-19 virus.
A duty to warn of an infectious condition has been imposed 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 to others who might foreseeably be exposed.
Although a physician’s duty to warn generally applies 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’s family.
Complicating the situation that doctors’ duty to warn is at odds with their obligation to preserve a patient’s confidentiality, a dilemma faced by medical practitioners whose patients test positive for HIV and neglect or refuse to warn their cohabitants or sexual partners.
Civil tort law in Texas and many other states recognizes a court claim for damages on the basis of negligent or intentional transmission of a sexually transmitted disease, even within a marriage. Some have even advocated for strict liability 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.
Furthermore, under Texas state law, although adult patients are permitted to refuse medical care for reasons of faith, even in the case of a communicable disease, they must comply with official quarantines or face liability, and failing to do so might constitute negligence per se.
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, 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 having contracted the infection.
In traditional common law, the use of a deadly weapon during an assault was offered as evidence of the assaulting party’s state of mind; defendants’ willingness to use a tool or method that might cause death or grievous bodily harm supported inferring they had intended to do so.
Thus use of a deadly weapon during assault thus represented an elevated degree of severity.
Similarly, under Texas criminal law, use of a deadly weapon during the commission of an assault enhances the seriousness of the crime to aggravated assault, a second class felony punishable by up to twenty years in jail under the Texas sentencing guidelines.
As recently as 2006, both saliva and seminal fluid containing the HIV virus have been deemed deadly weapons for purposes of aggravated assault in Texas. In fact, actual transmission of the disease is not required to constitute use of a deadly weapon.
As the Texas Appellate Court noted, aggravated assault law “does not require that a deadly weapon actually be used against anyone or even that anyone be in a ‘zone of danger,’ but merely that a deadly weapon be exhibited or used and that someone be in some danger.” Moreover, objects that are not traditionally thought of as weapons can become deadly weapons if they are used in a manner likely to cause death or bodily injury.
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.
As with all legal cases sanctioning the transmission of an infection, collecting and presenting evidence to prove the elements is complicated by the fact that the events are intangible and material evidence is microscopic.
Even among scientific experts, many questions about Covid-19 remain, including the virus’ effects and manner of transmission. Even confirming that an individual has contracted the disease has been a point of controversy, and several countries have reported that tests thought to be reliable are failing to detect up to seventy-percent of actual positive cases of Covid-19 coronavirus.
This lack of certainty in the factual record presents a significant challenge to proving elements such as mental state and causation in a criminal prosecution or civil action against a defendant who transmitted the Covid-19 coronavirus.
Showing that a person with Covid-19 breached a duty of care by ignoring a foreseeable risk may prove problematic when even healthcare experts still have questions how Covid-19 coronavirus can be transmitted. Simply to sue in a Texas civil court, under the open courts provision of the Texas Constitution a plaintiff must describe the injury suffered by defendant’s negligence, and any compensation or punitive damages are based on being able to prove it.
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:
All of these claims are potentially weakened by the speculative nature of a Covid-19 coronavirus diagnosis and prognosis.
Over-the-counter Covid-19 tests are widely available at pharmacies and even grocery stores. According to the CDC, there are two types of Covid-19 tests, PCR (also called NAAT – nucleic acid amplification tests), antigen tests, sometimes referred to as “self-home tests.”
PCR tests are generally performed in a laboratory and are considered the most reliable test for Covid. The PCR test detects genetic material, which can stay in your body for up to 90 days. For this reason, you should not take a PCR test if you’ve tested positive within the last 90 days.
Antigen tests are rapid tests which ten to produce positive or negative results within 15-20 minutes. They tend to be less reliable than PCR tests, which is why many people will take separate tests over the course of a few days if they suspect they have Covid.
You can order free self-test kits at COVIDTests.gov. You can also purchase self-test kits online, in pharmacies, and at many retail stores. You can visit the FDA’s website to see a list of authorized tests.
Absent a confirmed positive test for the Covid-19 coronavirus, it seems difficult to impose knowledge on a carrier-defendant of the virus, and proving even attempted homicide seems as remote as it has proven in cases to sanction HIV transmission. However, a charge of manslaughter or assault with a deadly weapon might be possible if a carrier’s behavior is sufficiently reckless in disregarding the risk.
Legal liability for HIV transmission earned a great deal of legislative attention and scholarly inquiry in the late 1980s and 1990s, when the disease (and questions surrounding it) were at their ascendance.
Misinformation might provide wiggle room for a defendant who negligently or intentionally transmitted the Covid-19 virus, but people who know they have Covid-19 have likely been informed by medical professionals and government that they should be isolated.
Even where carrier-defendants were unaware they had the disease, with potentially life-threatening conditions like HIV+, some courts have imposed liability on behavior and interactions that the defendant ought to have known would place a plaintiff at substantial risk of contracting the disease.
People who have been given a diagnosis of Covid-19 thus might incur liability if they neglected to isolate themselves in contradiction of medical recommendations, even more if state or local orders are issued establishing social distancing guidelines to be observed by everyone.
Such laws have already been used to sanction even healthy violators of isolation orders, and the idea that someone doing so knowing they are carrying Covid-19 might be subject to legal liability seems plausible and reasonable without constituting overreaching.
A closer case might involve someone who only has symptoms associated with Covid-19, but also neglects to isolate themselves, particularly against the orders of healthcare providers or state and local officials. This might involve the thorny task of showing the defendant knew that such orders or medical guidelines were in place, particularly since the issue of social isolation has developed a decidedly political bent.
Research indicates that most people consume news from sources they are likely to agree with, and consumers on opposite sides of the political spectrum are quite literally consuming different news. Thus defendants might reasonably argue that they did not really believe that Covid-19 posed a big risk, and understood the alarm expressed around the virus to be overblown.
All that said, whatever doubts remain about the epidemiology of Covid-19, the abundance of upwardly curving line graphs depicting the growing global death rate among carriers of the Covid-19 virus provides substantial evidence that it can kill.
Perhaps the largest challenge would lie in demonstrating that Defendant had transmitted the infection to Plaintiff. Unlike cases involving sexual transmitted diseases, the Covid-19 transmission is far less understood, and typically involves less intimate interactions between people. Tracing the origin of an individual’s contracting the virus might involve too many nodes.
Thus people whose efforts to practice social distancing were momentarily stymied by a Covid-19 carrier’s intentionally or reckless exposing them to the virus might have a more convincing case. Several rather egregious examples of parties maliciously or jocularly exposing others to Covid-19 have been reported, and might give rise to legal liability, at least absent implied or express consent by the parties who contracted it.
If you are someone you know is displaying symptoms of Covid-19 coronavirus, or you believe you have been exposed, there are many official healthcare websites offering up to date advice on how to respond, including the Center for Disease Control, the European Center for Disease Control and Johns Hopkins Epidemiology research center (the largest and oldest in the world.)