In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. A breach of the standard is necessary for a successful action in negligence.
In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work.
I am not a lawyer. So, my interpretation of applicable law is a layman’s guess and is definitely not authoritative. However, it may be worth considering what we know about pandemic flu from a scientific standpoint, what the CDC is doing, and whether a reasonable person would think that the CDC has taken appropriate steps to limit suffering and death.
It is well-established that closing schools is expected to limit the spread of pandemic flu, both to children and to the general population. There are peer-reviewed scientific papers which conclude this based on general models (Heymann et al. 2004; Glass et al. 2006). In addition, there is specific information from the current pandemic indicating that closing schools slows the spread of the virus while resuming school rapidly increases the spread of the virus. None-the-less, Dr. Thomas Frieden has made it clear that he believes that schools should remain open during the pandemic. He has said this in his official capacity as Director of the CDC. Further, the CDC has issued guidelines to the States specifically recommending that schools remain open.
A CDC Director’s Brief was leaked via Cryptome indicating that the case fatality rate for school age children with the pandemic flu virus was 0.22%. Given an estimated attack rate of at least 30%, it would be anticipated that there will be thousands of deaths among children if the schools are open. Since this information was available to Director Frieden in July, the fact that the CDC itself acknowledges that school children are already dying at much higher levels from pandemic flu is not a surprise. Indeed, this was the inevitable consequence of their stated policy of open schools and their internal data indicating a much higher than normal case fatality rate with pandemic flu as compared to seasonal flu. However, it is important to point out that parents were never warned of the greatly increased risk that their children would be taking when schools opened this fall despite the fact that Director Frieden had internal information indicating that this was likely.
Given these facts, it would interesting to determine whether a lawyer would consider that Director Frieden and the CDC have breached the standard of care with respect to recommending that schools be kept open. It is possible to sue the Federal Government under the Federal Tort Claims Act. The first step is to file a Notice of Claim (form SF95). This must be filed within 2 years of becoming aware of negligence on the part of the Federal Government. The government can choose to settle the claim within 6 months. If it does not, a suit can be brought against the United States in the United States District Court.
If anyone feels that they have not received standard of care from Director Frieden or the CDC, they may wish to contact a lawyer to determine whether filing a Notice of Claim is appropriate.
Heymann et al. (2004) Influence of school closure on the incidence of viral respiratory diseases among children and on health care utilization. Pediatric Infectious Diseases Journal, 23:675-677.
Glass et al. (2006) Targeted social distancing design for pandemic influenza. Emerging Infectious Disease.12:1671-1681.
Schools closed in most of Argentina over A(H1N1) influenza.
m & c, July 1, 2009
School Closures May Help Limit Swine Flu Damage, Study Finds.
Bloomberg, July 20, 2009
Strategy On Flu Under Revision
Washington Post, August 4, 2009
CDC: Leave school closings to local officials
Atlanta Journal-Constitution, August 7, 2009
CDC: Seventy-Six U.S. Children Have Died From H1N1 Flu.
Wall Street Journal, October 7, 2009.