Unlike the now-well-known Coronavirus, Hantavirus is not spread from person to person, except in a rare few patients. Hantavirus live their lifecycle in rodents, but apparently do no harm to this host. However, when passed to a human, the results can be deadly, regardless of age or heath condition. According to the CDC, Hantavirus infections have a mortality rate of approximately 38 percent. Ehrhart v. King County, 2020 WL 1649891 (2020) explores the duty owed by a county in Washington when county officials become aware of a virus infection.
A woman living near Issaquah contracted Hantavirus in November of 2016. She visited urgent care, was treated for nausea, and was discharged. She returned to urgent care the next day with worsening symptoms and was admitted to a hospital. She spent several days in a coma, but she survived. The hospital notified King County of the woman’s case in December 2016, and King County promptly assigned a public health nurse to conduct an investigation. The investigation included a review of the patient’s medical records, interviews with her and her husband regarding exposure and recent travel, and consultation with her physicians. The investigation indicated she had likely contracted Hantavirus on her own property and the likely source of Hantavirus exposure was confined to her rural land outside Issaquah. King County determined there were no other likely exposures and thus a health advisory was not warranted.
Brian Ehrhart lived near Issaquah. In February 20017, he went to the emergency room with fever, chills, vomiting, and a persistent cough. He was discharged and told to return if his symptoms worsened. The next day, he was rushed to the emergency room with failing organs, where he died shortly thereafter from Hantavirus exposure.
A lawsuit against King County, the emergency room physician, and Swedish Medical Center, was filed on Ehrhart’s behalf, alleging their negligence caused his death. WAC 246-101-505 required King County to “[r]eview and determine appropriate action” whenever it received reports of certain serious conditions. Ehrhart asserted King County breached a duty owed to him by failing to issue a health advisory after it learned of the November 2016 Hantavirus case. King County asserted the public duty doctrine, among other affirmative defenses, in its amended answer.
Ehrhart and King County both filed motions for summary judgment, with the public duty doctrine at the center of each. Shockingly, the court ruled “that there is a mandatory duty” for King County to “review and determine” appropriate action, but “the jury needs to decide whether what the County did was or was not appropriate” to determine if the steps taken qualified as “action.” This convoluted ruling triggered the decision for the Washington Supreme Court to grant discretionary review.
A defendant is not liable for negligence unless he owes a legal duty to use care. The duty must be one owed to the injured plaintiff, and not one owed to the public in general. Ehrhart argued WAC 246-101-505 created a duty King County breached by failing to issue a health advisory after it knew of the November 2016 hantavirus case. King county claimed the public duty doctrine barred Ehrhart’s claims because the duty King County owed under WAC 246-101-505 was to the public in general and not to Ehrhart as an individual.
The public duty doctrine becomes active when special governmental obligations are imposed by statute or ordinance. Traditionally, regulatory statutes imposed a duty on public officials, which is owed to the public as a whole, and such a statute did not impose any duties owed to a particular individual. Precedent recognized four exceptions to the public duty doctrine, which provided for liability even in the face of otherwise public duties: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship.
Here, the arguments focused on failure to enforce. To prove the failure to enforce exception applies, a plaintiff must show that (1) governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, (2) fail to take corrective action despite a statutory duty to do so, and (3) the plaintiff is within the class the statute intended to protect. The trial court misapplied the elements to this case when it ruled King County might not have taken action, since a jury had not yet decided whether the action taken was appropriate. The Washington Supreme Court found King County did in fact make a determination about how to respond to the December 2016 report of a hantavirus case; Ehrhart simply disagreed its determination was appropriate.
The other exception argued was special relationship. The Supreme Court found the plain language of the WAC made it clear the class of people meant to be protected by WAC 246-101-505 is the public as a whole. Ehrhart stipulated the other two exceptions to the public duty doctrine did not apply. Because no exception applied in this case, the Washington Supreme Court ruled the public duty doctrine barred Ehrhart’s suit.
I anticipate a rapid growth in similar such litigation once our current health reverses itself. With reports of Coronavirus surfacing in the months before 2020, what steps were taken by governmental entities to protect the public as a whole at the federal level or the state level? Were the steps timely? Adequate? What laws, if any will change to address these questions? It will be interesting to see what changes in our litigation landscape may unfold in the coming months and years due to diseases and our government’s responses to them.