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What should be the liability for a tick bite?

As previously reported in The Lakeville Journal (April 4, 2013), a Connecticut jury has awarded $ 41.7 million to Cara Munn, a young person who contracted tick-borne encephalitis while on a Hotchkiss School-sponsored trip to China in 2007. Cara Munn suffered, and still suffers from, partial paralysis and speech impediment.

What is important in this case should not be “ambulance chasing” or pursuit of “deep pocket” endowment money, no matter how sympathetic we are toward the patient. Rather, we must do everything in our power to restore this young person to health and a rewarding life. This means everything from stem-cell therapy to electronic speech recovery therapy. (When Christopher Reeve suffered total spinal cord severance, much money exchanged hands, but Reeve never received the necessary stem-cell reconstruction he could have, and he died in his wheelchair from pneumonia instead.)

As to the legal issues: All concerned persons, institutions and courts of law should take “judicial notice” of the fact that no institution (school, camp, charity or family) can ensure that a child in their charge will never be bitten by a tick. This is a matter of pure law; it is not for a jury to decide. Consequently, no such institution can be held strictly liable for tick bite and its consequences, whether the bite takes place in the USA or abroad. Were this not the case, every school or camp outing, or Audubon bird count, or game of “capture the flag” in the woods, would have to be cancelled — forever.

An institution such as Hotchkiss can be held to give adequate notice of risks, take steps to minimize those risks and apply proper medical procedures to diagnose and treat disease conditions resulting from tick bite. Those are specific fact questions that a jury can indeed decide. But here are the epidemiological facts: With the exception of Japanese encephalitis, the incidence of encephalitis tends to be slightly higher in the USA and “developed” Western nations than it is in the East or in tropical or “developing” nations. Tick-borne encephalitis is practically unknown in China. Even if a school or parent checks with NIH/CDC or WHO, the disease risks will be seen as legion, with encephalitis very low on the list in any foreign country.

Encephalitis is difficult to detect initially, because it usually presents like a typical case of flu. It is not a question of fault given that it tends to be equally missed by medical personnel and services in both the USA and the foreign country such as China. Firm diagnosis of actual encephalitis is based on blood tests and brain imaging. Early treatments with anti-inflammatories and anti-virals are then critical. How the Munn case was handled in fact is an important aspect of the Hotchkiss case, but this is a matter for medical experts, not trial lawyers, to testify to. A skilled litigator can sway any jury, but what is needed here is the objective, medical truth.

When a case such as this one worsens toward paralysis and loss of speaking ability, the cause is not so much the initiating pathogen (viral or bacterial) as it is the patient’s own genetically determined susceptibility to excess immune or auto-immune response. Thus, in the Hotchkiss China trip case, several young participants were taken sick, but only one, Miss Munn, came down with a life-threatening encephalitis reaction to a tick-borne infection, which is almost unknown in China.

The Connecticut jury award against Hotchkiss School is enormous in magnitude, but more significantly it appears to violate an important principle of law that such damages cannot be awarded without showing specific wrongdoing or reckless disregard for personal safety. Were this not so, we in the World Health Organization (or in the UN, UNICEF, UNHCR, USAID, Doctors Without Borders or other charities) could not attract American citizens to help fight diseases such as Ebola or Cholera, or promote and strengthen basic primary health care services, anywhere in the world.

Fortunately, in the Hotchkiss case, a coalition of concerned institutions, associations and individuals are filing an amicus appeal to overturn the Connecticut jury decision, seek a more balanced alternative and reaffirm a proper interpretation of liability law in this country. Now, let’s shift our attention back to making Cara Munn whole and healthy again.

Anthony Piel is a former director and general legal counsel of the World Health Organization.