Public Transit Emergency Preparedness Against Ebola and Other Infectious Diseases: Legal Issues (2017)

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54 IX. CONCLUSION “A timely and efficient public health response during an outbreak is critical to preventing the introduction, transmission or spread of communicable disease.”583 Transit is increasingly becoming the backdrop against which pandemics unfold, making the need for emergency preparedness for IDOs ever more important. IDOs, including SARS, MERS, H1N1, and even the seasonal flu, provide opportunities to identify areas in which public health and transit can work together to ensure transit’s readiness for IDOs. The 2014 Ebola outbreak highlighted some of the ways an IDO could affect transit, depending on the location and mode. Dallas, Texas and New York City, for example, faced different Ebola-related transit challenges. Both, however, recognized the need for preparedness efforts that focused specifically on the unique challenges of a PHE, such as an IDO. Simi- larly, states’ various responses to the Ebola outbreak, such as implementation of quarantine and isolation policies, reveal the complexities of an effective tran- sit public health response that respects the individ- ual civil liberties of both passengers and employees. Transportation’s role in a PHE response has evolved, and continues to evolve, as transit PHE planning advances. The HHS’ proposed rule, intended to update its ability to respond with “a more timely, efficient, and complete public health response,”584 recognizes these developments and needs, and significantly expands the role that trans- portation agencies play in that response. Transit agencies on their own, however, have also identified the need for better communication and coordina- tion, as well as clear lines of command, when responding to an IDO. Guidance for implementing policies or procedures for responding to an IDO— from effective disinfection of carriers, to worker protection, to handling infected or potentially infected passengers—remains limited, and subject to change based on a disease’s specific characteris- tics. These observations underscore the importance of the need for transit to move forward with compre- hensive policies and procedures that address an IDO, grounded in an understanding of the legal background and mechanisms for a PHE response. include the failure to properly operate air ventila- tion systems, defects in waste disposal systems, and not having on hand sufficient medical supplies.576 Case law indicates that, in general, airlines are the most at risk for lawsuits from passenger contrac- tion of an infectious disease. In Dias v. Transbrasil Airlines, Inc.,577 it was alleged that poor air quality in a plane’s cabin led to a passenger’s contraction of pneumonia and eventual death. In that case, the court held that poor air quality qualifies as a condi- tion that airlines may be held liable for under Arti- cle 17.578 However, passengers face significant obstacles to recovery. Under Article 17, passengers bear the burden of showing that the disease was contracted “during the period encompassed by the contract of carriage.”579 This is a difficult evidentiary burden to meet, as the moment of disease contrac- tion is not readily apparent in many cases. Transportation agencies may also face infectious disease tort claims. In Lancer Ins. Co. v. Garcia Holiday Tours,580 passengers successfully sued a commercial bus company after a bus driver diag- nosed with TB infected several passengers.581 A jury assessed $5 million in damages against the bus company and driver.582 Recovery may be more diffi- cult when actions are brought against a government or quasi-governmental agency, but the case under- scores the importance of proper procedures for infec- tion control. From monitoring and tracking, PPE, and social distancing to disinfection of contaminated environ- ments, the process of disease prevention and control operates on multiple levels. In an IDO, the challenge to transit agencies will not only be to manage the implementation of these practices, but to do so in a manner that is cognizant of the liberties possessed by passengers and employees. 576 Air Carrier Liability for the Spread of Communicable Disease, cLyde & cO. (Feb. 19, 2016), http://www.lexology. com/library/detail.aspx?g=76177579-aaa3-4de2-ae49- 207603c816cc. 577 26 Avi. 16048 (D.C. S.D. N.Y. 1998). 578 Id. 579 Air Carrier Liability for the Spread of Communicable Disease, cLyde & cO. (Feb. 19, 2016), http://www.lexology. com/library/detail.aspx?g=76177579-aaa3-4de2-ae49- 207603c816cc. 580 345 S.W.3d 50, 52 (Tex. 2011). 581 Id. 582 Id. An attempt by Garcia Holiday Tours to sue their insurance carrier on an indemnification claim reached the Texas Supreme Court, but ultimately failed. Id. at 59–60. 583 Control of Communicable Diseases, 81 Fed. Reg. 54,230, 54,234 (proposed Aug. 15, 2016) (to be codified 42 C.F.R. pts. 70, 71). 584 Id.