RIGHTS IN A PANDEMIC DEBATED IN FORUM

By Barbara Feder Ostrov

Mercury News

Here's how a worldwide flu epidemic might start:

A sales manager for a multinational corporation returns to his California office from a business trip to Vietnam, feeling sick.

Within days this otherwise healthy man is near death. Other employees come down with a flu-like illness. A cleaning woman dies.

Tests show he has infected his co-workers with a form of bird flu that originated in Asia. Public health officials fear the worst: an outbreak of deadly pandemic flu.

What responsibility does the multinational corporation have to its workers? Can public health officials make residents stay in their homes to prevent the spread of disease? Can the government commandeer a local doctor's supply of Tamiflu for people who need it most, or force nurses to be vaccinated? What if frightened nurses refuse to work?

That scenario, and the troubling legal and ethical questions it raises, were the topic of a Wednesday conference of attorneys and public health workers in Millbrae, sponsored by the Berkeley-based Public Health Institute.

In any disease outbreak, there is a tension between civil liberties and the need to protect the public's health, said Marice Ashe, who directs the institute's Public Health Law Program.

``Forced vaccinations, searches for supplies of vaccine, the financial losses of a convention center that's forced to close -- all of these actions have major legal implications,'' Ashe said. ``We need to be able to move quickly in a pandemic. The goal is to save lives.''

As federal, state and local governments develop plans to deal with a possible outbreak, lawyers are wrestling with how to protect individual liberties and property rights without getting in the way of public health workers. It could be a difficult task.

Who's liable if someone has a fatal reaction to flu vaccine in the midst of a pandemic?

Federal law requires hospital emergency rooms to stabilize patients before transferring them, but would that be realistic when thousands of people need treatment? Could a hospital be sued for a flu patient's death if it didn't have enough ventilators available?

The nation's legal system doesn't necessarily have answers to these questions, nor could it address them quickly. Yet local officials will have to act with haste, in the absence of good information, to try to contain local outbreaks once they occur, said conference organizers.

In a declared state of emergency, public health officers have the authority to commandeer hospitals and supplies, shut down large gatherings, quarantine infected people and control how vaccines and medications are distributed.

On the other hand, while California law allows health authorities to command the aid of citizens or health workers in an epidemic, it's nearly impossible to force people to work against their will.

As a practical matter, some regulations -- such as those protecting patient privacy -- might have to be temporarily set aside, experts said.

The H5N1 bird flu virus, which is not easily transmitted from person to person, has killed more than half of the 204 people who have been confirmed infected, according to the World Health Organization. Health experts believe that this particularly virulent form of avian flu, circulating in Asia and the Middle East, could mutate into a highly contagious virus that could spark the world's next pandemic of influenza.

The worldwide outbreak of Spanish flu in 1918 killed 40 million people, and flu outbreaks in 1957 and 1968 each killed more than 1 million people.

``We must try to address these issues now, while we still have some little luxury of time -- although we don't know how much time,'' said Carol Klove, chief compliance and privacy officer for the University of California-Los Angeles.

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IF YOU'RE INTERESTED

For more information on planning for pandemic flu, visit www.pandemicflu.gov.

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Contact Barbara Feder Ostrov at bfeder@mercurynews.com or (408) 920-5064.