Lawyers.com > Understand Your Legal Issue > Health Care > Swine Flu: HIPAA, Liability & Public Health Issues

The images were everywhere: People in breathing masks and fully covered in protective gear, the country of Mexico suddenly at a standstill. The words rang a bell: Russian flu, Asian flu, bird flu. All the while, Americans asked themselves: How bad is this new illness called the "swine flu?" And how widespread?

The Centers for Disease Control (CDC) announced the detection of "swine influenza" in April 2009. According to the CDC's press briefing on April 23, 2009, these are viruses that usually infect pigs but are being found in people. The CDC clarified that the disease is spread by person-to-person contact, especially by coughing and sneezing, but not by eating pork products. The CDC indicated in a late May press briefing that it expects a vaccine to be available this fall.

Still, the CDC stated that public warnings should be paid attention to, such as keeping children out of school when symptoms appear. One recent estimate placed the number of Americans who had contracted the swine flu at 100,000, but nearly all were mild cases. A few deaths have been reported in the US, with the first being reported in Illinois on May 25. The furor has eased somewhat, and you may feel comforted that you don't know anyone who came down with the illness. Or do you?

Privacy Protections Still Apply to People With Swine Flu

A few years ago the American people were outraged about a young man who failed to disclose that he had tuberculosis before hopping on a plane loaded with other passengers. Do you have a legal obligation to disclose a contagious illness such as swine flu?

A sweeping federal law known as the Health Insurance Portability & Accountability Act (HIPAA) came into being, with the driving force being the public outcry to keep medical and health information strictly confidential unless very specific procedures were followed indicating a person's consent to disclose. The early years involved mountains of paperwork shoved at patients upon arrival at any health care facility.

Now that the dust has settled, the greatest impact of HIPAA is that health care providers are now much less willing to reveal a patient's records - or any information about the patient's health condition - unless they have a current, up-to-date consent form personally signed by the patient.

This means that health care providers, employers, schools and others cannot legally disclose to others the health condition of anyone unless that person has given their express consent. If a child at a school has been diagnosed with the swine flu or other illness, other parents can't be told of that student's identity by the school unless the student's parents have consented.

Swine Flu Carriers Cannot Be Sued or Prosecuted

Generally speaking, you can't be sued for harming others via transmission of a disease except in limited circumstances. A key factor is that you knew or should have known you were contagious and were likely to infect another person. Injury must also be proven, such as the actual infection with the disease or illness, not just the fear of becoming infected.

As swine flu is spread by sneezing and coughing, it would be extremely difficult to prove that you knowingly gave the disease to another. If, for example, you were diagnosed with swine flu, knew of that diagnosis, but then placed yourself in close proximity to others, there could be a basis for a lawsuit. However, any attorney considering whether to take the case will assess whether it's likely that this "causal link" can be proved, and also whether significant illness or death resulted. Prosecutors will also consider whether to bring criminal charges based on these findings.

Keep Informed of the Facts

Parents may find themselves in a difficult position if they risk losing wages - or even losing their job - if they stay home to take care of themselves or a sick child. However, certain state and federal laws protect you against employers punishing or discriminating for a disability. In this case, disability can include illnesses. An attorney can give you advice about these laws and determine your employer's policies and rules for absence due to illness.

The best course is to keep informed of the symptoms and means of transmission of the swine flu. The CDC Web site is an excellent source of this information. Above all, heed the public warnings and take reasonable steps to protect yourself and others from unwanted illness.