Menu of Suggested Provisions For State Tuberculosis Prevention and Control Laws

Appendix B. Selected State Tuberculosis Control Cases⁷

Acknowledgement: We would like to extend our thanks to Tara Ramanathan, JD, MPH, ORISE Fellow, Public Health Law Program, CDC, for her work on this Appendix.

1. Dept. of Community Aff. v. Eden House, Inc., No. A-3311-05T2, 2009 WL 1163983 (N.J. Super. App. Div. May 1, 2009).
   The court affirmed the administrative law judge’s determination that a for-profit residential healthcare facility violated health/safety/welfare regulations, including failure to ensure that all of its employees were tested for TB in accordance with state law. Consequently, revocation of the facility’s license and imposition of fines and penalties were appropriate.

2. Huffman v. State, 204 P.3d 339 (Alaska 2009).
   A regulation requiring all students new to public school to receive a tuberculin skin test that also provided for an exemption for any child who provided an affidavit from a physician did not infringe on parents’ First Amendment right to free exercise of religion.

3. Levin v. Adalberto M., 156 Cal. App. 4th 288, 67 Cal. Rptr. 3d 277 (Cal. Ct. App. 2 Dist. 2007).
   A patient with TB did not have a due process right at the civil detention hearing to a unanimous jury verdict on proof beyond a reasonable doubt of his unwillingness to complete a prescribed course of medication and to follow infection control precautions, which justified the detention order.

4. In re Washington, 292 Wis. 2d 258, 716 N.W.2d 176 (Wis. App. 2006).
   The state TB control statute authorizes long-term confinement, to a jail, of a person with noninfectious TB who is at a high risk of developing infectious TB and who fails to comply with a prescribed treatment regimen. Confinement in a jail is allowable under Wisconsin law, so long as a court determines that the facility is a place where proper care and treatment will be provided, and the spread of disease will be prevented (a court may consider cost as a factor if faced with a choice between two or more facilities that meet these criteria).

5. Adair’s Peace of Mind Day Care, LLC v. Comm’n, No. 2001-CA-000546-MR, 2003 WL 1389875 (Ky. App. Mar. 21, 2003).
   The day care’s operating license was revoked due to numerous deficiencies in violation of state regulations, including a lack of documentation that employees had been tested for TB.

6. Dorsey v. Adams, 255 Ga. App. 257, 564 S.E.2d 847 (Ga. Ct. App. 2002).
   The court held the county responsible for insufficient inmate medical care in the county jail, including lack of documentation of required TB testing and defective TB isolation rooms.

7. Souvannarath v. Hadden, 116 Cal.Rptr.2d 7, 95 Cal. App. 4th 1115 (Cal. Ct. App., 5 Dist. 2002).
   The court held that detaining TB patients in jail is a violation of California law, and ordered the county to desist from placing nonadherent TB patients in the county jail.

8. Hannis ex rel. Hannis v. Sacred Heart Hosp., 789 A.2d 368 (Pa. Cmmw. Ct. 2001).
   Names and addresses of persons identified by the Bureau of Health in connection with its investigation of a physician who allegedly exposed patients to TB was confidential information contained in confidential records protected by statute, and thus not discoverable in parents’ class action negligence suit against a physician for damages arising out of TB exposure; disclosure of names and addresses would not further the statute’s purposes but would undermine the local health agency’s ability to collect information and deter patients from seeking treatment.

9. Bradley v. Crowell, 694 N.Y.S.2d 617, 181 Misc. 2d 529 (N.Y. Sup. Ct. 1999).
   A petition by the county health officer requesting involuntary detention of an individual with communicable TB required proof by clear and convincing evidence.

10. City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 165 Misc. 2d 1014 (N.Y. Sup. Ct. 1995). The court upheld an order requiring involuntary detention in a hospital of a person with active TB until completion of treatment, or until a change in circumstances indicates that the patient can be relied upon to complete the prescribed course of medication without being in detention.

11. Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 446 S.E.2d 794, (Ga. Ct. App. 1994).
    The trial court ordered a patient with infectious TB to adhere to the board’s petition for involuntary home isolation and outpatient treatment. The patient appealed and the appellate court dismissed the case as moot because the board lifted the order of home isolation once the patient was determined to be noninfectious.

12. City of New York v. Doe, 205 A.D.2d 469, 614 N.Y.S.2d 8 (N.Y. App. Div., 1 Dept. 1994).
    A patient appealed an order of the trial court directing continued detention, arguing that her MDR TB could be treated and the public’s health protected by less restrictive means. The court disagreed – “Clear and convincing evidence of respondent’s inability to comply with the projected 18 to 24 month prescribed course of medication in a less restrictive environment was provided by proof of her history of drug abuse, unstable or uncertain housing accommodations, apparent inability as demonstrated by her own testimony, to understand the nature and seriousness of her condition, and refusal to cooperate with petitioner’s repeated efforts to have her participate in voluntary forms of directly observed therapy.”

13. Langton v. Comm’r of Correction, 614 N.E.2d 1002, 34 Mass. App. Ct. 564 (Mass. App. Ct. 1993).
    The court upheld a mandatory TB testing program in prisons because the Department of Public Health had authority to order TB testing, the Department of Correction had authority to implement the mandatory testing program, the inmates had no constitutional right to refuse TB tests, and conducting testing in allegedly unsanitary conditions was not cruel and unusual punishment.

14. City of Newark v. J.S., 652 A.2d 265 (N.J. Super. Ct. Law Div. 1993).
    The court upheld confinement of a patient with TB, finding that public health officials proved by clear and convincing evidence that the patient had active TB and posed a risk to the public’s health. The court determined that since the patient was homeless and neither the patient nor his attorney proposed a less restrictive setting than a hospital, the patient must be isolated in a hospital to protect the public’s health. The court also upheld the involuntary confinement statute, but construed it to include due process rights and guarantees under the Americans with Disabilities Act.

15. County of Cook v. Chicago, 593 N.E.2d 928, 229 Ill. App. 3d 173 (Ill. App. Ct. 1992).
    The county brought suit against the city, seeking reimbursement of expenses for treating city residents with TB at the county hospital after the city closed the municipal TB sanitarium. The court found that the city was not unjustly enriched by deciding to close the TB sanitarium, even though the county hospital treated residents who formerly received inpatient treatment for TB, since the city had no duty to maintain or establish the TB sanitarium and the county hospital had an independent duty of care to all patients. The court also held that the city had no statutory duty under public health laws to provide inpatient care and treatment to residents with TB.

16. L.G. v. State, 775 S.W.2d 758 (Tex. Crim. App., El Paso 1989).
    After a TB patient was ordered confined at a hospital designated by the state commissioner of health, the trial court changed the patient’s confinement and treatment to another hospital. The appellate court held that the trial court lacked authority to change the place of confinement and treatment unless the commissioner designated another facility.

17. Greene v. Edwards, 263 S.E.2d 661, 164 W. Va. 326 (W. Va. 1980).
    The court granted a writ of habeas corpus and a new hearing for a patient with active TB involuntarily confined to a hospital, because counsel was not appointed until after the commitment hearing commenced and was therefore unprepared to defend the patient. The court held that patients must be afforded the following due process rights under the state TB Control Act: “adequate written notice detailing the grounds and underlying facts on which commitment is sought; the right to counsel; the right to be present, to cross-examine, to confront and to present witnesses; the standard of proof to be by clear, cogent and convincing evidence; and to the right to verbatim transcript of the proceeding for purposes of appeal.”

18. District of Columbia v. Weiss, 263 A.2d 638 (D.C. 1970).
    The appellee did not pay a hospital bill for TB treatment, and the city brought an action for breach of contract. The court held that the statute of limitations does not apply to the suit brought by the city, even if based on contract, because expending money for the treatment of TB is for the public health and the public good.

19. Hermitage Health & Life Ins. Co. v. Cagle, 420 S.W.2d 591, 57 Tenn. App. 507 (Tenn. Ct. App. 1967).
    The court held the insurer liable for hospitalization expenses for a TB patient hospitalized in a tax-supported state institution by statute, which provides that “all policies which afford coverage for tuberculosis, as this policy does, ‘shall not exclude hospitalization benefits for tubercular patients hospitalized in tax supported institutions of the state of Tennessee or any county or any municipality thereof.’” The court noted that the rule of law in Tennessee is that any statute applicable to an insurance policy becomes part of the policy and such statutory provisions override and supersede anything in the policy repugnant to the provisions of the statute.

20. Application of Halko, 54 Cal. Rptr. 661, 246 Cal. App.2d 553 (Cal. Ct. App. 1966).
    The court denied the writ of habeas corpus filed by a TB patient isolated at a hospital pursuant to a health officer’s successive quarantine orders issued in 6 month intervals. The court held that “[state law] does not contain any limitation or prohibition respecting the period of quarantine or the power of the health officer to issue consecutive certificates of isolation. The law reasonably assumes that consecutive orders for quarantine may issue so long as any person continues to be infected with tuberculosis and on reasonable grounds is believed by the health officer to be dangerous to the public health.”

21. Moore v. Armstrong, 149 So. 2d 36 (Fla. 1963).
    The court found that the petitioner had not been deprived of his civil rights during periods of isolation for nonadherence while confined in a state hospital for treatment of infectious TB; writ of habeas corpus denied.

22. Jones v. Czapkay, 6 Cal. Rptr. 182, 182 Cal. App. 2d 192 (Cal. Ct. App., 1 Dist. 1960).
    The court found the city and county health officers not liable to the plaintiff, who developed TB meningitis after allegedly being infected by a person who health officers knew had TB but who was not in quarantine.

23. State v. Snow, 324 S.W.2d 532, 230 Ark. 746 (Ark. 1959).
    Health officials petitioned the probate court to involuntarily commit the defendant, who they alleged to have infectious TB, to the state TB sanatorium. The probate court held that the petitioner “failed to show by sufficient and competent evidence that the respondent has tuberculosis in a communicable or infectious stage; has failed to establish by sufficient and competent evidence that the circumstances are not suitable for proper isolation or contagious control; has failed to establish by sufficient and competent evidence that the respondent is a source of danger to others and has failed to establish by sufficient and competent evidence that respondent should be committed to the sanatorium.” On appeal, the court affirmed the probate court’s ruling as not contrary to the preponderance of the evidence.

24. State ex rel. Holcombe v. Armstrong, 239 P.2d 545, 39 Wash. 2d 860 (Wash. 1952).
    The court upheld a University of Washington rule requiring a chest x-ray examination for TB for all incoming students, finding that the public health interest of students and university employees outweighed the First Amendment interest of the student who sought a religious exemption. “Infringement of appellant’s rights is a necessary consequence of a practical attempt to avoid the danger.”

25. Moore v. Draper, 57 So. 2d 648 (Fla. 1952).
    A patient was confined in the state TB sanitarium pursuant to a commitment order issued by a county judge under the state TB statute. The patient challenged the statute, arguing that it violated due process and the First Amendment right to free exercise of religion. The court denied the writ of habeas corpus, holding that “the statute relating to compulsory isolation and hospitalization of tubercular persons is not unconstitutional as discriminatory against all persons other than those of certain religious faith and belief.”

26. In re Stoner, 73 S.E.2d 566, 236 N.C. 611 (N.C. 1952).
    The court denied the writ of habeas corpus filed by a TB patient who was convicted of violating the state TB statute, enacted for the prevention of the spread of TB, for failing “to take the health precautions prescribed by the Health Department to protect his family and the public from being infected with tuberculosis, he being an active tubercular carrier in the infectious stage.”

27. County of Hennepin v. County of Houston, 39 N.W.2d 858, 229 Minn. 418 (Minn. 1949).
    The court found that the county in which a TB patient resides is responsible for the cost of treatment at a different county’s facility.

28. Perez v. Lippold, 198 P.2d 17, 32 Cal. 2d 711 (Cal. 1948).
    The court struck down a state statute prohibiting interracial marriage based on the state’s interest in protecting marital partners from communicable diseases (based on the suggestion “that certain races are more prone than the Caucasian to diseases such as tuberculosis”) in part due to a violation of the Equal Protection Clause of the U.S. Constitution.

29. Conlon v. Marshall, 59 N.Y.S.2d 52 (N.Y. Sup. Ct. 1945).
    The court upheld a regulation requiring teachers and school employees to obtain medical certificates clearing them of active TB promulgated pursuant to the authority of the Board of Health for the City of New York to protect children and the public good.

30. In re Opinion of the Justices, 14 N.E.2d 953, 300 Mass. 615 (Mass. 1938)
    [Opinion by the Court to the Legislature of Massachusetts]. The court found a proposed act regulating the operation of barbershops, which were thought to promote the spread of TB and other communicable diseases, unconstitutional.

⁷ We chose the state cases (listed in chronological order with a brief description of the court’s holding) in this Appendix based on potential interest and relevancy to readers of the Menu, particularly state TB programs and their legal counsel.