The Bioterrorism Band-Aid:
Why We Cannot Manage Bioterrorism with
a Broken Public Health System
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Edward P. Richards
Director, Program in Law, Science, and
Public Health
Louisiana State University Law Center
richards@lsu.edu
http://biotech.law.lsu.edu
Google: Smallpox Law
Thesis
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Public Health is Driven by Fear
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Bioterrorism Frightens Politicians
Bioterrorism Gets Attention
Bioterrorism Preparedness Does Not Improve
Public Health
The Smallpox Vaccination Plan for Health
Care Providers Shows why Public Health
Infrastructure and Trust Matters
We Have to Fix Public Health and Health Care
to be Prepared for All Public Health Disease
Threats
Why is Bioterrorism so Scary?
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Bombs and Armed Attacks
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Open and Obvious
Obvious Endpoints
Chemical and Bioterrorism
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Includes Nuclear Contamination
Stealth
Unknown reach
Unknown Duration
Why Smallpox Bioterrorism?
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Stable Aerosol Virus
Relatively Easy to Produce
Infectious at Low Doses
10 to 12 day incubation
period
High mortality rate (30%)
No proven treatment
Victims as Vectors
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Smallpox Spreads Primarily Through
Person to Person Contact
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People are Infectious When They Start to
Develop Sores
Stay Infectious Until They Recover or Die
Cases must be isolated until cured
Contacts should be Vaccinated and
Quarantined for 2 weeks
The President's Smallpox
Vaccination Campaign
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In mid-December, the White House
announced a campaign to vaccinate 500,000
health care workers over the next two
months
Three months later, approximately 10,000
health care workers have been vaccinated
and many hospitals have refused to
participate
Why?
Smallpox Vaccine is
Dangerous
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Only dangerous vaccine in use
Live Virus Vaccine (Vaccinia Virus)
Must be Infected to be Immune
Complications of Vaccination
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Local Lesion
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Can be Spread
on the Body and
to Others
Progressive
(Disseminated)
Vaccina
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Deadly Like
Smallpox, but
Less Contagious
Historic Probability of Injury
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35 Years Ago
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5.6M New and 8.6M Revaccinations a Year
9 deaths, 12 encephalitis/30-40%
permanent
Death or Severe Permanent Injury 1/1,000,000
Injuries were to Immunosuppressed
Persons
How Have Medical Risks
Changed?
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Immunosuppression Was Rare in 1970
Immunosuppression is More Common
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HIV, Cancer Chemotherapy, Arthritis Drugs,
Organ Transplants
Because of HIV privacy policies, many HIV
infected persons do not know it
Many Others Do Not Realize Their
Medicines Make Them Immunosuppressed
How Have Legal Risks
Changed?
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Society has much less tolerance for risk
Society has lower respect for public
health authorities
Tort law was a minor problem in 1970
Now you must have legal immunity or it
is too risky to use smallpox vaccine
Homeland Security Act
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Section 304 provides governmental immunity
to persons and institutions participating in the
smallpox vaccination program
You must sue the Public Health Service under
the Federal Tort Claims Act
Probably cannot win under discretionary
immunity
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Even if it is dumb, you cannot sue for things the
government does on purpose
Atom bomb cases
Problems with Sec. 304
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Poorly Drafted
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Probably does not apply to medical staff
members
Some other ambiguities
Cuts off compensation
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Injured health care providers are limited to
worker's compensation
Injured third parties such as family
members and patients are out in the cold
Concerns of Health Care
Providers
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Health Departments do not have enough
personnel
Hospitals are worried about paying worker's comp
costs
Workers are worried about injuries and the limited
payments by comp
Everyone is worried about risks to
immunosuppressed patients and family members
and how to pay for their care
Epidemiologic Issues
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Many hospitals believe the plan is
unsound so it does not justify taking
any risks
No provisions for regionalizing care
No provisions for triaging smallpox
cases away from hospitals
No provisions for quarantine and
isolation
Isolation and Quarantine
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Do You Let Them Stay at Home and
Promise to Not Go Out?
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How do They Get Food?
Medical Care?
Take Over A Hotel or Prison?
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No Good Respiratory Isolation
If Someone Gets Sick, All Are At Risk
Pest House
What if there is a Smallpox
Outbreak?
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CDC Assumption - Hard to Spread
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Other Scientists - Easy to Spread
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Limited Transmission
Self-policed Quarantine At Home
Vaccinate Contacts and Trace New Cases
Hard Quarantine for Cases and Contacts
Mass Immunization
Which Way Do You Want to Bet?
Is the CDC Being Politically Expedient?
Why Are We Unprepared for
Smallpox?
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Public Health Believed the Virus Was Safely
Locked Away
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Stopping vaccinations was controversial
No Work on Better Vaccines
Intelligence Agencies Knew Smallpox Out of
the Box in 1992
Public Health Did Not Know this Until 1999
10 Years Could Have Solved the Vaccine
Problem
Are We Doing Better with
AIDS?
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Set up by the Bathhouses in the 1970s
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Huge Hepatitis B Epidemic
Really got AIDS Started
What have we Learned?
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Bathhouses are Open Again
AIDS is on the Increase
We do even know how many are infected
Other Emerging Infectious
Diseases
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Lyme Disease
West Nile
Dengue
Resurgence of Tuberculosis
5,000 people a year die of food borne
illness
Why is Fear Necessary for
Public Health?
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Effective Prevention Depends on Fear
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Fear Justifies Personal and Tax Costs
Fear Justifies Personal Risk
Fear Must Cut Across Classes
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The Middle and Upper Classes do not Fear
AIDS - We do Little to Prevent it
TB Scared Wealth New Yorkers - TB
Control Increases
Primal Fear of Epidemics
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Breaks Down Family and Community
Structures
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Fear of the Infected
No Backup When Caregivers are Ill
Synchronous Infection Wiped out the Indigenous
Peoples in the Americas
Disrupts Society
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Scholars argue plague ended the feudal system
Critical to conquest of the Americas
Public Health is a Fundamental
Government Function
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Epidemics Threaten Public Order
Right of Societal Self-Defense
Justifies Draconian Actions Under
National and International Law
From Quarantining Philadelphia to
Putting Alaskan Sex Offenders on the
Internet
Epidemics in the US
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Colonial Cities Were Wracked by Yellow
Fever, Malaria, Cholera, and Typhoid
Periodic Smallpox, Lots of Tuberculosis
Individuals, Cities, and Even States
were Quarantined
Life Expectancy in Boston in 1840 was
25
Public Health in the
Constitution
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Original Intent is Clear
Police Power Went to the States
Federal Government Retained Control
over Interstate Commerce and National
Security
State Public Health
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Most Public Health is done by state, county,
and local government
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Sanitation
Communicable Disease Control
Environmental Health
Broad Powers
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Seizure of Property
Personal Restrictions
Information Collection
Federal Public Health
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First Acts of Congress
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Public Health Hospitals
Quarantine Stations
National Security Powers
Much Later
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FDA, Agriculture Department, HHS, CDC
Interstate Commerce Powers
Could the Feds Require Smallpox
Vaccination?
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Are There Federal Police Powers?
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Could the Invasion Clause of the Constitution
Support Mass Smallpox Vaccinations as a
Protection Against Terrorist Invasion?
Current Method
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Threaten State Funding
Political Intimidation
Health Departments are Afraid to Resist
Public Health Revolution
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Sanitation Movement – Mid 1800s
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Clean Drinking Water
Waste Disposal
Disease Control
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Vaccinations
TB Control
Epidemiology: Investigation and
Intervention
Triumph of Public Health
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High Point - 1960s
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TB is Controlled
Vaccinations for Major Communicable
Diseases
Life Expectancy More than Doubled in 100
Years
1968 - Surgeon General Says Public
Health is Solved, on to Chronic Diseases
Destruction of Public Health
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Medicare, Medicaid, Private Health Insurance
Make Medical Care Much More Financially
Rewarding
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Medical Care is a Much More Expensive and
Cannibalizes Public Health Money
Health Departments Fill with Medical Care People
Research is Dominated by Drugs for Chronic
Illness
We Even Rationalize Away the Fear of AIDS
by Treating it as a Personal Choice
The Political Consensus Breaks
Down
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Without Fear, the Public Will not Pay for
Prevention
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Politicians want Health Directors who Do not
Make Trouble about Public Health
When Budgets are Cut, Public Health is First
Hard to Hire and Retain Trained Staff
Schools of Public Health Lose Their Focus
Privacy Trumps Public Good
Parallel Problems in Health
Care
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Reduced Hospital Beds
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Reduced Emergency Room Capacity
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Empty hospital beds costs money
Managed care and DRGs have shorted hospital
stays, reducing the need for beds
EMTALA has forced many hospitals to close their
ERs
Most remaining city ERs are over capacity
If you cannot handle routine traffic, how can
you handle a large number of causalities?
Why Bioterrorism Money Does
Not Help
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Post 911 Congress has Appropriated Billions
for Terrorism and Bioterrorism
Most is Law Enforcement and Fire
Departments, Some Public Health
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Equipment
Training
No Personnel
No Long Term Commitments
Mandates Cost More than the Funding
Doing the Numbers
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Health and Public Health Care are Expensive
when They Work Well
They Are Much More Expensive When They
Work Poorly
Only the Government Can Capture the
Savings
Private Insurers and Employers have too
much turn over and too short a time horizon
States Cannot Do the Job
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State Budgets are too Variable
Local Politicians are too Short-Sighted
Insurance and Health Care Are National
Business and Need Federal Regulation
The Feds Already Control a Large Part
of the Budget
Public Health as National
Defense
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The White House Recognizes that Public
Health is Part of National Defense
National Defense is a Federal Function
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Demands Stable Federal Money
Demands National Coordination
Cannot Be Done By Telling the States to
Manage Bioterrorism on Short-Term Money
End of Presentation