Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Med Care. 1997;35:172–191.
*Source: This section adapted from E.P. Richards, Living with Uncertainty:
Information Theory and Critical Care Decision Making, Journal of Intensive Care
Medicine, Vol. 5, pp. 91–92, © 1990 E.P. Richards and E.P. Richards and C.W.
Walter, How Effective Safety Devices Lead to Secondary Litigation, IEEE
Engineering in Medicine and Biology, Vol. 10, No. 2, pp. 66–68, © 1991 E.P.
Richards.
IV. Claims against the Government
Most public health personnel are employees of government, or contractors with
government agencies. Historically, the federal and state governments had sovereign
immunity, which was the common law concept that no one could sue the king
(government). If the state injured a person, the only way for the individual to get
compensation under sovereign immunity was to persuade the legislature to pass a special
law authorizing such compensation.
After the Civil War, Congress passed federal laws, including the Civil Rights Acts,
which allowed individuals to sue state officials who used state authority to violate the
individual's civil rights. Starting in the 1940s, the states and the federal government,
responding to the huge legislative burden of private compensation bills and the potential
for corruption in private compensation legislation, passed Tort Claims Acts. These
provided a legal remedy for negligence claims against the government and its
employees.
Public health agency employees are subject to the same legal liability as other
governmental employees, and their employers are subject to the same liability as other
government agencies. Public health departments are often the targets of litigation and in
some cases individual employees are also sued.
As discussed in the subsequent sections, federal public health agencies and employees
may be sued under federal law, and state agencies and employees can be sued under state
and federal law. Both the state and federal governments have sovereign immunity and
can only be sued under specific statutes giving permission to sue in defined
circumstances. Individual employees can be sued for their own actions, but they have
legal protections to the extent that these actions are within their job duties.
These laws attempt to balance the rights of injured individuals against the need to deliver
cost-effective public services and the need to protect public officials and employees from
individual liability for doing their job. Public health officials have to make many
unpopular decisions to protect the public health, and they cannot make these decisions if
they are worried about liability for themselves or for their jurisdictions.
At both the federal and state level, there are three types of claims which are handled
separately. First are claims for money, such as contract claims. Second are claims for
intentional harmful actions, such as unlawful detention, which violate an individual's
civil rights. Third are claims for negligent injuries, such as medical malpractice. These
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