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At what point does not testing for a known pandemic amount to gross negligence?

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

As of March 8, the CDC had only administered 1,707 coronavirus tests, that low figure rationalized by the idea that containment is still possible — simply test and isolate only those who had traveled between China or had been exposed to someone verified to have contracted the virus.

Given the rising figures from states who have developed their own tests and widened the testing criteria, it’s clear there should be a strategy shift from containment to mitigation, starting with allowing for the testing of as many people as possible so that the people who have contracted it, or been exposed to someone who has, can either get care or self-quarantine. Containment only makes sense if you’re aware of all the individual cases, and we’re not.

It’s beginning to appear as if our policy is predicated on denial — if we don’t widely test for COVID-19, the numbers won’t sharply rise and the administration can continue pretending this is the flu. But we’ve seen numbers spike elsewhere in a very short time, which makes sense given how much more contagious this virus is than the flu, not to mention how much more fatal. There is no reason to think we, as a country, are exceptionally immune to this, yet we’re acting as if we are.


The president has consistently downplayed the danger and impact, in sharp contrast to practically everything HHS and CDC officials have said. But those agencies aren’t autonomous, they are arms of the executive branch. So it’s not difficult to imagine how the foot-dragging isn’t incompetence so much as the consequence of a tug of war between Trump’s stated desire to keep the numbers low and CDC’s mandate to protect the nation from health threats.

But the longer we take to widely test, the harder it’s going to be to mitigate the impact, never mind contain.

The gross negligence standard is met where a party owes a duty of care and consciously disregards reasonable precautions, resulting in foreseeable harm. Contrary to the president’s assertion “that this is something that you can never really think is going to happen” (surrounded by HHS officials whose brains must’ve melted upon hearing that), this was quite foreseeable and indeed, health officials have been warning of precisely this event for decades, given its similarity to SARS and H1N1. What’s even more foreseeable is the coronavirus that’ll follow this one years from now.

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