Criticized,Fired,Sued,or Prosecuted: Hindsight and Public Health Accountability

In 1976, public health officials in the United States faced a tough decision. The detection of a novel virulent strain of influenza on a military base in New Jersey led some experts to predict a pandemic. Although seasonal influenza occurs annually, predicting pandemics is notoriously difficult. A novel influenza virus might herald a pandemic or signal a false alarm. With media reports of early cases of so-called swine flu fueling fear of a large outbreak and with the extra pressure of a looming presidential election, Dr David Sencer, then director of the Center for Disease Control (now the Centers for Disease Control and Prevention), reviewed the scientific evidence, consulted experts, and, with congressional approval, launched the national swine flu vaccination program. The rapidly implemented program was expensive, expansive, and controversial. The pandemic never materialized; swine flu did not spread widely; and the new vaccine was associated with an increased risk of Guillain-Barré syndrome—a rare but potentially life-threatening neurologic condition. In early 1977, Joseph Califano, the secretary of the US Department of Health, Education, and Welfare, announced the suspension of the swine flu vaccination program and dismissed Sencer. ^1,2

Sencer’s firing was a dramatic instance of accountability for an unsuccessful public health decision, but public health officials are always accountable to their agency supervisors, political leaders, the media, and the public. Even decisions that were, like Sencer’s, made with the best intentions and were reasonable given the information available at the time can be judged in hindsight to be bad, and the consequences can range from harsh public criticism to dismissal.

The Flint Case

Accountability is part of a public health official’s job description. In 2017, however, the water crisis in Flint, Michigan, produced something nearly unprecedented: criminal charges against public health officials for the results of their decisions. State public health officials were charged with serious crimes, including involuntary manslaughter, for the death of a man in an outbreak of Legionnaires’ disease, which occurred during the water crisis.

The Flint water crisis is one of the most catastrophic failures of public health in recent US history. In 2014, the state-appointed emergency manager of Flint approved a plan to move Flint’s water supply from the Detroit water system to the Flint River, purportedly to save money. The caustic Flint River water caused lead to leach from the city’s aging pipes, exposing thousands of residents to high concentrations of lead in their water supply. The exposure could have been prevented by an anticorrosive treatment costing $200 per day. ³ Despite complaints from residents, state officials denied the problem for months while harmful lead exposures accumulated.

Within a few months of the water switch, Flint experienced an outbreak of Legionnaires’ disease. Legionella bacteria thrived in the conditions created in Flint’s corroded water pipes. State public health officials allegedly knew about the outbreak as early as January 2015, as well as about a second outbreak that occurred in summer 2015, but they did not inform the public of the outbreak or take steps to avoid further infections until early 2016. In all, >30 people were infected, and at least 12 people died. ³

In 2017, prosecutors charged the director of the state health department and several other state officials with involuntary manslaughter and misconduct in office related to the death of a 75-year-old man who died from Legionnaires’ disease in 2015. ³ Involuntary manslaughter in Michigan is a felony that carries a penalty of up to 15 years in prison and a $7500 fine. To prove involuntary manslaughter, prosecutors must show that the death was caused by the defendant without legal justification or excuse while the defendant was acting in a grossly negligent manner. ⁴ The prosecutors alleged that the director was aware of the outbreak for almost a year; knew that the disease could be deadly and that the outbreak was likely to recur; had a legal duty to protect the public’s health; and “exhibited gross negligence when he failed to alert the public about the deadly outbreak and by taking steps to suppress information illustrating obvious and apparent harms that were likely to result in serious injury.” The prosecutors further stated that the director allegedly “willfully disregarded the deadly nature” of the outbreak and that these “acts and failure to act resulted in the death of at least one person.” ⁵

Criminal Accountability in Legal Context

The use of criminal law to prosecute a public health official for failing to prevent harm is a novel development in the United States. Public health work rarely produces the kind of actions and events that are alleged in Flint, and prosecutors are usually reluctant to pursue felony criminal charges that require them to prove beyond a reasonable doubt that a failure to act caused harm. More often, injured parties pursue monetary compensation through civil claims for negligence or gross negligence, which have also been filed in Flint. ^6,7 Civil cases are subject to a lower standard of proof, and their elements are easier to prove than criminal charges. Moreover, injured parties can file their own civil claims, whereas criminal charges must be brought by a prosecutor, who may be reluctant to pursue a novel theory of liability.

Compared with civil cases, criminal charges do have one potential advantage for those seeking accountability in holding officials personally accountable for their actions. In civil cases, government officials have strong statutory immunity protection for discretionary decisions made in their official capacity, such as how to respond to an outbreak. Similar protection is not available for criminal charges, because criminal activity is not inherently part of a government official’s professional discretion. Thus, if filed, criminal charges pose more risk of punishment for government officials. Several examples of criminal law being used to prosecute government officials for not warning the public to prevent harm have occurred in other countries, although such prosecutions are exceedingly rare outside the United States as well. ⁸

Implications for Public Health Practice

Having decisions condemned in hindsight is an unavoidable risk of public health leadership. Public health decisions must often be made on incomplete information about the problem or the solution and are often subject to controversy. Decision-making processes can be affected by the urgency of events, and knowledgeable officials acting in good faith might disagree about appropriate responses. Officials (and the experts who advise them) may reach differing but reasonable conclusions regarding the level of certainty required before acting to remove a putative harmful exposure, informing the public about a possible hazard that is under investigation, or implementing an intervention. ^9,10 In hindsight, a decision that failed despite the best intentions of the decision makers, caused unintended harms, or made ineffective use of time and money is ripe for criticism, as the 1976 episode of swine flu illustrated.

Public health officials are often criticized for their decisions, but they are rarely prosecuted for them. Aside from some cases of financial malfeasance, we are not aware of any instances aside from Flint in which public health officials in the United States have been criminally charged for the health consequences of their decisions. The criminal indictments in Flint raise important questions for public health officials. Does this case herald a new trend, in which prosecutors will feel freer to invoke criminal sanctions when public health officials make decisions judged in hindsight to be harmful and wrong? Was the alleged behavior in Michigan so egregious and so beyond the realm of reasonable or good-faith decision making that it represents an extraordinary situation with virtually no future practical implications for other public health officials? We believe the latter: that this is an extraordinary case. Although the outcome of the criminal charges in Flint will not be known until long after this article is published, we argue that this case will not likely—and should not—set a precedent for future prosecutions of public health officials under criminal law.

The facts underlying the Michigan prosecution are more conducive to criminal charges than most situations in which hindsight calls into question the wisdom of public health decisions. The facts as presented in the indictment suggest strongly that the director of the state health department and other department officials demonstrated a persistent reluctance to inform the public about the outbreak of Legionnaires’ disease or take effective action, ⁵ even though it was associated with serious health effects and centered on the same communities in Flint already harmed from lead exposures. Statements attributed to the indicted health officials suggest that the decision to delay notifying the public stemmed from a desire to avoid more negative publicity, rather than from a reasoned determination that the risk to the public’s health was insufficient to warrant public notification or other efforts to intervene. If the alleged actions of the public health officials prove to have been driven by political considerations rather than concerns about the public’s well-being, it will be easier to distinguish this case from typical public health situations in which decisions are challenged in hindsight. If the allegations are confirmed, it will also be easier to understand why the death of a 75-year-old man from Legionnaires’ disease is a unique target for an involuntary manslaughter charge as opposed to other methods of holding officials accountable for their decision making.

Politics also may have a role in this unusual case. The high-profile harm caused in Flint by lead poisoning and outbreaks of Legionnaires’ disease put immense pressure on prosecutors to bring charges and to aggressively pursue punishment for those involved in the decisions that led to these harms. This imperative to prosecute sets the Flint case apart from more prosaic instances in which public health officials make flawed decisions that lead to harmful consequences. Even if prosecutors manage to convict government officials of involuntary manslaughter in the Flint case, there are not likely to be many analogous situations in which a prosecutor would have the requisite evidence or desire to press criminal charges against public health officials.

The judicial system can be a circuitous, inefficient, and unsatisfying means to achieve accountability. Political and professional means can be more direct, responsive, and effective. Public health officials responsible for harms to the public’s health may be fired, reprimanded, demoted, or otherwise sanctioned—actions that have the advantage of being more immediate than legal proceedings. Public accountability can be hastened by critical media or legislative scrutiny, which can also prompt officials to resign. Sanctions within an executive branch are also, ultimately, subject to democratic review by voters, who may decide that elected officials should share some of the blame.

The Flint case may be an outlier, but the perceived threat of criminal prosecution could cause other public health officials to more aggressively pursue and publicize potential threats to the public’s health. Although this pressure could lead to quicker interventions in some cases, it would be equally likely to undermine the credibility of public health departments if they “cry wolf” too often and the public begins to doubt the veracity or expertise of public health officials. In addition, the threat of criminal prosecution for mistakes would likely deter qualified people from wanting to take leadership roles (or even other roles) in public health departments. Ideally, such concerns will be obviated by attention to the unique features of the allegations surrounding the Flint situation.

Conclusion

The charges filed by Michigan prosecutors against state public health officials related to the Legionnaires’ disease outbreak in Flint raise difficult questions about accountability and responsibility for public health officials. However, judging by the facts as alleged in the criminal charges, the circumstances in the Michigan case appear to be extreme and not representative of the usual ways that public health officials make difficult decisions with the public’s interest at heart. Accountability is vital, but those concerned with good public health leadership must distinguish between reasonable decisions made in good faith that nevertheless turn out to be incorrect and unreasonable actions that harm public health and deserve accountability. Several viable options exist to achieve accountability when things go wrong and public health decision making leads to harm. Accusing public officials of criminal acts for their failure to prevent harm to the public is exceedingly rare and should remain so.