By Jennifer S. Bard
One of the most frightening aspects of the ongoing COVID-19 pandemic has been the lack of a recognized and trusted source of health and safety information.
This vacuum exists in part because, aside from your personal doctor, most parties providing health guidance can offer whatever advice they want with impunity.
This stems from a point I raised in an earlier post: U.S. law strictly limits affirmative duties of care to a very narrow band of preexisting relationships, like that of a doctor and patient. The government, for example, does not have a fiduciary duty to protect your (or any individual’s) health and safety.
In the U.S., and most other countries that follow the English Common Law, unless a person has played a role in creating a dangerous situation, they face no consequences for failing to provide assistance, even if they can do so at no risk to themselves. One of the first thing U.S. law students learn is that an able-bodied adult can, without legal consequences, watch a two-year-old child drown in two feet of water.
Instead of a general duty, then, there are specific duties attached either to an individual’s actions in creating risk or danger, or in taking on a specific responsibility to a specific person or group. A certified lifeguard may be legally responsible for not attempting to rescue someone drowning at the pool where they work, but even they are no more responsible than anyone else for a water rescue at another pool on their day off.
Above and beyond the duties that people take on by virtue of employment or promise (a volunteer scout leader or coach usually takes on legal responsibility for those under their care), are the legally recognized fiduciary duties that professionals owe their patients, clients, or customers to not just keep them safe or rescue them from danger, but to affirmatively act in their best interests. While there are variations among states, these fiduciary duties are almost always specified as part of the statutes that regulate professional licensing. Specific federal laws also impose fiduciary duties on some, but not all, financial professionals, such as registered stockbrokers.
What does this all mean in terms of duties to protect the health of the American public during the COVID-19 pandemic? In short, the sources from which most people get health information, such as the U.S. Centers for Disease Control and Prevention (CDC), or state health departments, or medical professionals opining on television or social media provide advice without any obligation at all to individuals who hear and act on it. Because these parties have no duties of care to the population’s health and safety, their advice should be interpreted accordingly.
We’ve seen this play out during the pandemic: doctor, scientist, and hobby epidemiologists doling out advice, some of which has been wrong and dangerous. There is no mechanism for accountability in part because none of these parties have obligations to the individuals following their advice. And every person, coffee shop, play group, and pick-up softball league has been forced to contend with this crowded information ecosystem as it chooses its own sources of information and develops its own standards of risk assessment.