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Perspective |
1 Department of Radiology, Rush North Shore Medical Center and Rush Medical College, 9600 Gross Point Rd., Skokie, IL 60076.
Received January 23, 2008; accepted after revision January 24, 2008.
Tuberculosis carriers threaten the nation. Like terrorists, they must
be thwarted by enhanced security measures, including the vigorous use of
isolation and quarantine
[1].
Keywords: drug-resistant tuberculosis • liability • medical malpractice • tuberculosis
In January 2007, Andrew Speaker, a 31-year-old attorney from Atlanta, underwent chest radiography to rule out a rib fracture after a fall [2]. Although no rib fracture was found, the radiographs disclosed abnormal densities in one of his lungs. Findings on subsequent chest CT were suggestive of pulmonary tuberculosis (TB), but results of repeated examinations of sputum specimens were negative. In March 2007, Speaker underwent bronchoscopy, after which a definitive diagnosis of active TB was established [3]. Speaker was treated with a standard anti-TB regimen consisting of the drugs isoniazid and rifampin [4].
On May 10, 2007, the Fulton County, Georgia, health department determined that the strain of TB bacterium with which Speaker was infected was resistant to the two standard antibiotics. Later that day, health department officials met with Speaker and his family and informed them that Speaker had a more serious form of TB called multidrug-resistant TB (MDR-TB) [5]. Speaker informed the officials that he and his fiancée were planning to leave 4 days later, on May 14, for Greece, where they were planning to be married and spend their honeymoon. There is controversy about what was said at that point. Health officials later claimed that they told Speaker not to travel because of the diagnosis of MDR-TB, but Speaker later contended that he was told that he was not prohibited from proceeding with his travel arrangements [2]. In any event, Speaker changed his itinerary and, unbeknownst to county health officials, left Atlanta on a flight to Paris on May 12, 2 days before his originally planned departure date.
On May 18, 2007, the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services (CDC) discovered that Speaker had traveled internationally against medical advice and that his whereabouts were unknown [5]. On May 22, the CDC determined that Speaker had the rarer and more deadly type of TB known as extensively drug-resistant TB, caused by a strain of mycobacteria identified in 2006 in a small rural town in South Africa [6]. This strain is resistant not only to the two standard anti-TB drugs but also to all of the quinolones and at least one of the three second-line drugs, capreomycin, kanamycin, and amikacin [7]. Also on May 22, CDC officials reached Speaker, who was in Italy, by telephone, informed him of the more serious diagnosis, and instructed him to terminate all travel and proceed immediately to a hospital in Italy for medical care. The officials also requested that U.S. Customs and Border Protection personnel detain Speaker on his reentry to the United States. Although they later claimed that they received assurances from Speaker that he would comply with their instructions, these officials later found that on May 24, Speaker had checked out of his hotel without disclosing his destination and traveled by commercial airliner first to the Czech Republic and then to Montreal, Quebec, Canada. On arriving in Montreal, Speaker rented an automobile and reentered the United States. Notwithstanding the fact that U.S. Customs agents had been notified to detain him on reentry, Speaker crossed the border uneventfully.
After multiple attempts, CDC officials contacted Speaker on his cell telephone and directed him to report immediately to Bellevue Hospital in New York City, where he would be served a quarantine order for isolation and medical evaluation [5]. Speaker complied and remained at Bellevue in isolation for 72 hours [8] and then was transported by CDC personnel to Grady Memorial Hospital in Atlanta. A federal isolation order was issued against Speaker, the first such federal order since quarantine of a suspected smallpox carrier in 1963 [4].
On May 31, 2007, Speaker was transported for treatment to the National Jewish Medical and Research Center in Denver, where results of laboratory tests revealed that he did not have extensively drug-resistant TB but did have MDR-TB. In July 2007, Speaker underwent a thoracotomy during which the diseased portion of his infected lung was resected. Soon thereafter, Speaker was declared noncontagious. On July 26, he was released from National Jewish Medical and Research Center in Denver and returned to his home in Atlanta [3].
The World Health Organization (WHO) TB and airline travel recommendation is that persons who may have been exposed to extensively drug-resistant TB be evaluated and tested for TB infection [5]. In this case those persons are the passengers aboard the two transatlantic flights who were seated within two rows in front of and two rows behind Speaker as well as the cabin crew members. In an effort to comply with this recommendation, CDC officials contacted approximately 245 U.S. citizens and residents who were on the same flights as Speaker.
Several months after learning they had been exposed to TB, eight passengers filed a class action liability lawsuit against Speaker in the Superior Court of Quebec, Canada, seeking damages of more than $1.3 million. Although as of this writing there is no evidence that any of the plaintiffs contracted TB, they are claiming [9]:
...moral damages for loss of enjoyment of life and violation of certain fundamental rights related to having to undergo extensive testing for tuberculosis, forgo their vacation plans, and live for a considerable period of time with the fear that they had contracted a potentially deadly disease.
The lawsuit is pending.
Resurgence of the White Plague
The Persian physician Avicenna (also known as Ibn Sina) is generally credited with discovering the contagious nature of pulmonary TB in the 10th century [10]. During the 18th and 19th centuries, TB was known as the white plague and was the leading cause of death among young persons all over the world [11]. Laennec disclosed the physical signs and morbid anatomy of TB in the early 19th century, and Villemin in 1868 found that TB was caused by a transmissible agent. In 1882 Robert Koch, the German microbiologist, identified the tubercle bacillus, now known as Mycobacterium tuberculosis or acid-fast bacillus.
TB occurs most frequently in Africa and eastern Europe, where the incidence is more than 300 cases per 100,000 population per year [7]. In parts of Asia and South America, the incidence ranges between 100 and 300 cases per 100,000 population per year. In the United States and the rest of North America, the incidence decreases to 0-24 cases per 100,000 population per year. The TB case rate in the United States has declined tenfold since 1953. Approximately 15,000 cases are diagnosed per year, more than half occurring among persons born outside the United States [12].
For nearly 3 months in mid 2007 the saga of Andrew Speaker captured the headlines in the national and international news media. Although drug-resistant TB, characterized by one group of scientists as "the latest chapter in humanity's battle with the `white plague'" [4], had been well known in the medical and public health communities for more than a decade, it had attracted little attention among the general public before the Speaker case. TB is worthy of high-profile public attention. Much of the public believes that TB is a disease of the past and is no longer a matter of concern, but TB still ranks among the most feared and dreaded of all afflictions of the human race [13]. Because of the increased susceptibility of HIV-infected persons to the disease and the emergence of drug-resistant strains, the worldwide burden of TB continues to grow [7]. Two billion persons—one third of the world's population—are infected with M. tuberculosis. TB is the leading infectious cause of morbidity and mortality among adults worldwide, killing approximately 2 million persons every year [12]. It is especially deadly among persons infected by both HIV and M. tuberculosis. Every year there are 450,000 new cases of MDR-TB [14]. In 2006, the WHO [15] issued a global alert on drug-resistant TB. The drug resistance has been described as having "the potential to transform a once treatable infection into an infectious disease as deadly [as] if not more so than TB at the beginning of the twentieth century" [4].
Mortality rates among TB-infected patients vary considerably according to TB strain and whether the patient is immunocompromised. TB that responds to standard drug therapy has a cure rate greater than 95% [5]. The cure rate among patients with MDR-TB ranges from 50% to 80%. Mortality rates among persons with extensively drug-resistant TB are considerably higher; fewer than 30% of persons who are not immunocompromised are cured, and more than 50% die within 5 years of diagnosis. The mortality rate among immuno compromised patients with extensively drug-resistant TB approaches 90% [5, 12].
TB in the United States
With international air travel constantly increasing, especially since the attacks of September 11, 2001, concern about the threat of TB and other contagious diseases is being increasingly voiced [16]. The quotation at the beginning of this article is a paraphrase of comments made by Congressman Bennie Thompson (D-MS), chair of the U.S. House of Representatives Committee on Homeland Security [1].
The Speaker case was the first to focus the spotlight on international air travel as the primary means of importing TB into the United States, but it is most assuredly not the last. In December 2007, newspapers reported that a 30-year-old woman traveling on a flight from India to Chicago was found to have MDR-TB [17]. The CDC identified 44 passengers who were sitting in the woman's row and in the two rows in front of and behind her as the most susceptible to infection during the 16-hour flight. Arrangements were made to test all of those persons for possible TB. According to the Chicago Tribune, a CDC spokeswoman proclaimed: "TB is serious, and we want people to get tested. It may be that nobody has it, but we want them to get tested just in case. We need to do more to prevent people from flying if we are aware they have infectious TB" [18]. Additional similar cases are likely to occur. Notwithstanding the medical fact that the usual case of pulmonary TB has a low order of infectiousness [19], cases similar to those of Speaker and the passenger flying from India to Chicago are likely to occur.
Quarantine and Isolation
Speaker was issued a federal quarantine and isolation order, the first such order in the United States in 44 years. The concept of segregating ill persons to contain the spread of disease dates to biblical times [3]. The word "quarantine" arises from the Italian words quarantenara and quaranta giorni, which in Venice in the 14th century designated the 40-day period during which ships were isolated before permission was granted for the goods to be unloaded and the crew and passengers to disembark. Quarantine laws were instituted in Europe and North America in the latter part of the 19th century [20].
As early as 1876, the Supreme Court of Maine affirmed that "the legislature can confer powers on public officers...for the protection of the public health. The individual right sinks in the necessity to provide the public good" [21]. In New York City, an 1888 statute provided that [22]:
Every local board of health shall guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection, control of all persons and things arriving in the municipality from infected places, and isolation of all persons and things infected with or exposed to such diseases.
At that time, however, quarantine was not commonly imposed for TB-infected persons. In 1903, an editorial in the Journal of the American Medical Association stated, "Quarantine is unnecessary in tuberculosis, provided the patient is properly instructed and these instructions performed.... We, as physicians, can prohibit the infection of others by educating the people to their danger" [23].
The word "quarantine" should be differentiated from the word "isolation" [3]:
Quarantine involves the restriction of the movement of persons who have been exposed, or potentially exposed, to infectious disease, during the period of communicability, to prevent transmission of infection during the incubation period. Quarantine seeks to prevent the spread of dangerous, highly contagious pathogens. Isolation involves separating, for the period of communicability, known infected persons from the community so as to prevent or limit transmission of the infectious agent. Isolation often is the action taken rather than quarantine, particularly for TB. Isolation is, where possible, linked to treatment, including directly observed therapy for TB.
To Quarantine or Not to Quarantine: Balancing the Welfare of the Community Against the Rights of the Individual
Quarantine and isolation orders have been infrequently issued in the United States, and it is not rare to have them challenged in court. In 1900, the San Francisco Board of Health, because of allegations that nine persons in the area had died of bubonic plague, quarantined a 12-block territory in Chinatown that was inhabited by more than 10,000 persons. The presence of bubonic plague was never proved, and a lawsuit challenging the quarantine order was filed. Pointing out that a quarantine order is unconstitutional "if it is applied and administered by public authority with an evil eye and an unequal hand, so as to make unjust and illegal discriminations" [24] and that "the personal liberty of the citizen and his rights of property cannot be invaded under the disguise of a police regulation," [24] the court ruled that the quarantine order was "unreasonable, unjust, and oppressive and contrary to the laws of the state" [24].
In the United States, by the end of 1959, one half of the 50 states had passed legislation compelling TB-infected persons who would not voluntarily cooperate with health authorities for appropriate treatment to be confined and isolated to a TB sanitarium or similar facility so that treatment could be administered to "keep the public from being exposed to TB germs that undoubtedly are being spread about from an active case of TB" [25]. A California appellate court explained the rationale for such legislation in the following manner [26]:
The duty of the state to protect the public from the danger of TB...is a well-recognized principle. That one of the first duties of a state is to take all necessary steps to protect the health and comfort of its inhabitants, that TB is a dangerous and infectious disease, that it is prevalent throughout the state, and that it is communicated by milk and other food products stand undisputed. A public health officer has the right to restrict the liberty of a patient by [obtaining] isolation or quarantine orders [in order to] keep persons, when suspected of having contracted or been exposed to an infectious disease, out of a community, or to confine them to a given place to prevent intercourse between them and the people of the community.
Depriving a U.S. citizen of liberty by confining or committing that person to a health or penal facility is not a matter taken lightly by any government agency or the federal and state courts. Safeguards codified in the Fifth and Fourteenth Amendments of the U.S. Constitution ("No person...shall be deprived of life, liberty, or property, without due process of law") clearly acknowledge that, as in a decision by the Supreme Court of Appeals of West Virginia, "Liberty, full and complete liberty, is a right of the very highest nature. It stands next to life itself. The Constitution guarantees it" [27].
Balancing the rights of individuals with the needs of the community is fraught with many moral, not to mention legal, considerations, as has been pointed out by medical-legal authorities [3]:
Civil libertarians draw attention to the substantial personal interests affected by isolation and quarantine actions. Individuals subjected to confinement lose their liberty, suffer invasions of individual rights (including loss of privacy), face stigma because their community is aware of the infectious danger they pose, may have their bodily integrity compromised because of compulsory treatment, and endure socioeconomic burdens such as the loss of income during their detention, and possibly thereafter.... [However,] persons with infectious or potentially infectious TB pose a risk to the public. TB can be spread by airborne droplets, and thus, detention may be ethically justifiable, and provided that it is necessary, is used as a last resort applied in keeping with the notions of human dignity and natural justice.
The question of the standard of proof required in a legal proceeding to compel commitment, quarantine, or isolation was specifically enunciated by Chief Justice Warren Berger in a 1979 U.S. Supreme Court decision [28]. The Court pointed out that an individual's liberty is of such weight and gravity that due process of law requires the state to justify confinement by proof more substantial than a mere preponderance of evidence, which is the standard in ordinary civil litigation, such as medical malpractice lawsuits. On the other hand, pointed out the Court, due process does not require a standard of proof beyond a reasonable doubt, as is applicable in criminal prosecutions. Rather, concluded the Court, the required proof is somewhere in between: "clear, unequivocal, and convincing evidence."
A case similar to that of Speaker occurred in New York City in 1999. A 33-year-old woman was admitted to a hospital with radiographic and sputum smear findings diagnostic of active TB. Soon after antibiotic therapy was instituted, the patient left the hospital against medical advice. She entered the hospital several times over the next several months, but on every occasion she left without completing treatment. Eight months after the first admission, the woman again entered the hospital. On this occasion, chest radiographs showed marked progression of pulmonary TB, and sputum examination revealed MDR strains of M. tuberculosis. Acting on a state law giving the health department authority "to issue an order for the removal or detention in a hospital or other treatment facility of a person who has active TB" [29], authorities legally confined the patient to a hospital. The patient sued the city of New York, alleging violation of her constitutional rights. The court upheld the health depart ment order [29].
Several other court decisions relating to detention of patients with TB warrant mention. In Fresno, California, a woman found to have MDR-TB did not comply with an ordered treatment program, failing on repeated occasions to appear at a designated chest-health clinic. The city issued an order of quarantine and isolation directing that the woman be detained in the county jail until she completed the prescribed course of treatment. The patient filed a lawsuit against the city health department alleging that confining her to a jail cell was illegal. The court ruled in favor of the plaintiff, holding that the patient must be confined in a health care, rather than a penal, facility [30].
A 2007 case in Wisconsin similar to that in California was resolved differently. A Wisconsin statute authorized [31]
...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, provided that the jail is a place where proper care and treat ment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement.
The city of Milwaukee ordered that a patient with the diagnosis of TB who "had a history of disappearing from sight and had been belligerent to police officers" [31] be jailed because "the medical staff at a hospital would not be equipped to handle the patient's outbursts" [31]. The patient sued to prevent this action, and the matter eventually reached the Wisconsin Supreme Court. The court upheld the jail confinement but pointed out that its ruling applied only to persons with [31]:
...non infectious TB—that is, persons who will not become infectious if they receive proper treatment and are forced to comply with a prescribed treatment regimen. For persons with infectious TB or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement, for such a placement would almost certainly increase, not prevent, the risk of transmission of the disease.
One last legal case merits attention. In California, a man with tuberculous meningitis filed a lawsuit against the state of California, the county of San Mateo, and various officials employed by the county health department. The plaintiff alleged that because these officials failed to perform their duties to quarantine a patient, the plaintiff was unnecessarily exposed to TB and thus contracted tuberculous meningitis [32]. The plaintiff quoted from a California law that stated, "Each health officer is directed to use every available means to ascertain the existence of...suspected cases of TB...and quarantine or isolate all persons known to be infected with TB in an infectious stage" [32]. The plaintiff went on to allege that although they did order quarantine, the defendants nonetheless failed and neglected to enforce the "provisions of the health and safety statutes" [32], which in turn allowed the known patient with TB to expose the plaintiff to TB. The California Courts of Appeal rejected the lawsuit, ruling that the officials owed no legal duty to the plaintiff.
International and National Positions on Detention for TB Control
The emergence of MDR and extensively drug-resistant mycobacteria has compelled nations throughout the world to formulate mechanisms designed to curtail the spread of the more deadly types of TB. Determining policies for detention and possible quarantine or isolation of patients harboring resistant strains of TB has been a priority. At a meeting in October 2006, a WHO task force on extensively drug-resistant TB affirmed that to ensure every patient has access to high-quality diagnosis and therapy for drug-resistant forms of TB while the public is protected from the serious threat posed by extensively drug-resistant TB, governments will find it necessary to limit the human rights of persons infected with extensively drug-resistant TB who willfully refuse treat ment. The task force emphasized that interference with freedom of movement by instituting the quarantine or isolation necessary to serve the public good is legitimate under international human rights laws [33].
In the United States, the CDC, undoubtedly spurred by the attacks of September 11, 2001, and subsequent anthrax attacks, authorized drafting of the Model State Emergency Health Powers Act (Model Act) [34] in 2002. Among its many provisions, the Model Act grants the Secretary of Health and Human Services authority to make and enforce regulations to prevent the introduction, transmission, or interstate spread of communicable diseases into or within the United States and to apprehend, detain, or conditionally release persons infected with certain quarantinable diseases specified by presidential order. As of this writing, the president has identified cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, viral hemorrhagic fever, severe acute respiratory syndrome, and pandemic influenza as quarantinable diseases. As of the end of 2007, nearly 40 states had adopted the Model Act in whole or in part [3].
In 2005 the U.S. Department of Health and Human Services proposed federal quarantine regulations that empower federal public health officials to impose provisional quarantine on infected persons for up to 3 business days. Thereafter, officers can order full quarantine if they deem it necessary, but under such circumstances, individuals can request an administrative hearing to contest the order. As of this writing, the federal government had not adopted these proposals [3]. Policies vary among countries. A 2007 review of public health legislation in 14 European nations revealed that eight countries sanction detention, either within the home or in an institution, for patients with TB [35].
TB and Air Travel: Guidelines for Control and Prevention
Recognizing that widely accessible world air travel contributes to the spread of contagious diseases by infected travelers, the WHO in 1998 issued guidelines for air travel, the primary purpose of which was to control the spread of TB. These guidelines, which were updated in 2006, consist of numerous recommendations that relate to travelers, airline staff, and the public at large. They include but are not limited to the following: "People known to have infectious TB must not travel by public air transportation until at least two weeks of adequate treatment has been completed. Patients with MDR-TB should not travel until they have been proven to be non-infectious (i.e., culture-negative)" [36].
The WHO guidelines define active TB as "tuberculosis disease associated with symptoms or signs" and infectious TB as "active tuberculosis that is transmissible to others, i.e., contagious, usually determined by a positive sputum smear" [36]. The guidelines also state that TB-infected persons should be considered noninfectious if they have been receiving adequate TB treatment for more than 2 weeks, unless they continue to exhibit symptoms of TB, such as cough, or are known to have MDR-TB.
The U.S. government has focused considerable attention on immigration policies. The CDC in 2007 issued technical instructions for TB screening and treatment that apply to persons overseas who plan to immigrate to the United States. The instructions mandate that all applicants 15 years or older undergo, among other tests, posteroanterior chest radiography. Applicants younger than 15 years must undergo both posteroanterior and lateral radiography of the chest under specified circumstances. The instructions mandate that all radiographs be interpreted by a radiologist and that "chest radiographs of any applicants, especially children, should be re-taken if the initial CXR is suboptimal due to factors such as incorrect penetration or motion artifact. Chest radiograph interpretations should include comparisons with prior chest radiographs, if available" [37]. Interestingly, authors of a report published in The Lancet in 2003 [38] found that the diagnosis of TB was made on the basis of chest radiographic findings in fewer than 1% of cases of TB infection in Botswana. Although an accompanying editorial opined that the yield of chest radiography for screening or detecting TB is "too low and insufficiently sensitive to justify the expense and exposure" [13], the CDC immigration requirements nonetheless must be followed.
Potential Liability of Radiologists
Radiologic medical malpractice litigation related to TB-infected patients can arise from several sources. A radiologist who misinterprets as normal chest radiographs that in retrospect are found to have findings of or suggestive of TB can be sued by the patient or the patient's family for alleged malpractice. Potential liability may not end there, however, because the issue of third-party liability must be addressed. If a TB-infected patient whose chest radiographs have been misinterpreted by a radiologist infects another person, can the third party file a malpractice lawsuit against the original interpreting radiologist? Let us explore this question.
In 1976, the California Supreme Court addressed the issue of third-party liability, although the case did not involve a medical doctor or a person with TB. The case dealt with a psychotherapist who was told by a patient under his treatment that the patient was going to kill a woman. The psychotherapist did not inform the young woman or her family of the death threat, and later the patient did indeed murder the woman. The woman's family sued the psychotherapist for negligent failure to warn her or others of the danger. The defendant-psychotherapist argued that he had no duty of care to the woman or her parents and thus asked for dismissal of the lawsuit. The case reached the California Supreme Court, which held that there was a legitimate legal basis for the lawsuit [39]:
When a therapist determines that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.... A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct.... By entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.... In our current crowded and risk-infested society, reasonable care to protect the threatened victim requires the therapist to warn the endangered party.
Courts in two other states focused specifically on the question of whether a physician has a duty to warn individuals that they risked contracting TB if they are exposed to a TB-infected patient under the care of the physician. In New York, a patient whose chest radiographs and laboratory findings indicated the presence of active TB was not informed of those findings for more than a year. The patient's wife and children filed a lawsuit against the physician for his alleged negligence in failing to inform them of the illness, claiming that their health was impaired because they continued to live with a patient who had TB and was not being treated for it. The New York court upheld the validity of the lawsuit, stating [40]:
It is common knowledge that TB is a contagious and communicable disease. The risk of the plaintiff-wife contracting TB from her husband, when unaware that he was so afflicted, was reasonably fore-seeable by the defendant-physician. In fact, no damage resulted from the negligent act for almost a year, and then the damage occurred. Nonetheless, the damage was the result of a danger which could have been anticipated by the exercise of reasonable foresight. The defendant-physician could have reasonably anticipated that the plaintiff-husband, without knowledge of his contagious disease, would not take the precautionary measures necessary to prevent infecting others, including his wife, with the germs of the disease.... It is the duty of the physician who is attending a patient afflicted with a contagious or infectious disease to exercise care in advising and warning members of the family and others [italics added] to avoid doing any act which would tend to spread the infection and to take all necessary precautionary measures to prevent its spread to other patients. A physician who fails to give such warning is negligent and is liable to any person injured as the result of his negligence.
A Florida court issued a similar decision in a case in which the child of a TB-infected father contracted TB from the father, allegedly because the physician failed to diagnose the father's illness in a timely manner. The court stated [41]:
It is recognized that once a contagious disease is known to exist a duty arises on the part of the physician to use reasonable care to advise and warn members of the patient's immediate family of the existence and dangers of the disease. We hold that a physician owes a duty to a child who is a member of the immediate family and living with a patient who has a contagious disease to inform the family of the nature of the contagious disease and precautionary steps to be taken to prevent the child from contracting such a disease.
There is judicial precedent for family members and others exposed to a person with undiagnosed or untreated TB infection who is under the care of a physician to hold that physician liable under certain circumstances. As mentioned earlier, passengers who sat near Speaker on his transatlantic flight have filed a lawsuit against Speaker, alleging injury because of their exposure to Speaker during the flight. The WHO document Tuberculosis and Air Travel: Guidelines for Prevention and Control states that "evidence for M. tuberculosis transmission has been found only when exposure to the person with TB exceeded eight hours" [36]. The guidelines emphasize that in estimation of the duration of exposure in such cases, the total duration of the flight, including ground delays after boarding, flying time, and ground delays after landing, must be taken into account.
The WHO guidelines do not include the recommendation that a TB-infected passenger or his or her physician notify other passengers who may have been subject to exposure so that they may undergo medical testing to determine whether they have contracted the disease. Nevertheless, Speaker is being sued by passengers, and the outcome of that lawsuit is unknown as of this writing. If the passengers' lawsuit succeeds and the decision is affirmed by an appeals court, would the door to the courtroom be opened to the possibility that a radiologist who does not correctly interpret a patient's radiographs that in retrospect are determined to have findings suggestive of TB could be sued by third parties who have contracted TB from the patient? No such case has come before any court, although courts have held radiologists liable to third parties under other circumstances [41, 42]. The question is at present unanswerable.
Another liability may be faced by radiologists who interpret chest radiographs of applicants for immigration to the United States. If as the result of misinterpretation of these radiographs a third party contracts TB because the applicant was not properly treated owing to the missed diagnosis, could the third party sue the radiologist? The answer to that question also remains to be determined.
Summary
A marked resurgence of TB has occurred in the world, notably in Africa, Asia, eastern Europe, and certain regions of South America. The morbidity and mortality of TB have increased substantially in recent years because of the increasing number of HIV-infected or otherwise immunosuppressed persons and the development of drug-resistant strains of mycobacteria. Many nations, including the United States, have strengthened laws to permit detention, quarantine, and isolation of persons with TB infection. Because these measures limit the liberty and curtail the rights of individuals, these actions are not taken lightly by governmental agencies. The WHO with the support of many nations has promulgated guidelines on dealing with air travelers who are later found to have had TB infection at the time of travel. The U.S. government has also formulated policies regarding persons who desire to immigrate.
Chest radiographs remain a basic means of detecting TB. Radiologists who do not correctly interpret radiographs that in retrospect are found to have findings suggestive of TB can be held liable if the misdiagnosis is proven to have resulted from the radiologist's negligence. That a patient who has sustained injury as a result of a radiologist's negligence can sue the radiologist for malpractice is nondebatable. Whether persons who have no direct relationship with a radiologist but later contract TB by being exposed to a TB-infected patient whose diagnosis was missed owing to negligence on the part of a radiologist can sue that radiologist is a question that has not yet been adjudicated in U.S. courts. Radiologists should keep in mind, however, that in recent decades U.S. courts have greatly expanded radiologists' legal duties to third parties and the potential liability for violation of these duties [42, 43]. It should be pointed out that a person who is exposed to a TB-infected patient need not necessarily contract TB to claim injury. Courts have recognized fear of cancer as a compensable injury [44]. It is thus quite possible that they may similarly accept fear of TB as a legally legitimate injury.
TB, at one time thought to be a disease of the past in the United States, has reappeared, not only in a more deadly form but also with the associated expansion of potential legal liability. When interpreting chest radiographs or CT scans, radiologists should be more alert than ever to considering TB in the differential diagnosis and to ensuring timely communication of their findings to appropriate persons.
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