(d)(5) hold on a minute!
In this week's New England Journal of Medicine, Wendy Parmet provides legal justification for my inchoate worries. (More about the author.)

Many important questions remain [regarding quarantine and detention for tuberculosis control]. First, courts have not decided how long someone may be held before a hearing is offered or what procedures are necessary in the event of a mass quarantine. Courts have also not yet decided what probability of risk justifies short-term or long-term detention. Nor have they clarified what evidence is needed to determine that a person is or may be infectious or how infectious a person must be to justify isolation. Most critical, courts have not explained what must be shown to conclude that a patient is noncompliant so that detention is the least restrictive alternative. In tuberculosis cases, courts have upheld detention when a patient has failed, like [Andrew] Speaker, to follow medical advice. But they have not considered how forcefully that advice must be given or what, if anything, the government has to do to facilitate compliance. [. . .]

Compulsory isolation and quarantine alone cannot stop the spread of XDR tuberculosis. Moreover, excessive reliance on compulsory measures can lull the public into a false sense of security and at the same time prompt people who are at risk to do exactly what Speaker did — run. Fortunately, most persons infected with tuberculosis want treatment and have no desire to infect others. When clinicians and health officials work with patients and have their trust, most will cooperate. By ensuring that coercion is used only when less restrictive alternatives will not work and with due regard for the rights of those detained, the law can foster public trust, minimizing the need for compulsion and laying the groundwork for the comprehensive and costly control programs needed to prevent the spread of XDR tuberculosis and other contagious pathogens.

Dr. Zauberberg
Or: How I learned to stop worrying and believe in the (d)(5) hold.

I'm now rotating. (Of course, we're all rotating together, being on the Earth and all.) I'm currently working on the Chest Service of Bellevue Hospital. "Chest" means "lung" which means (at least for most of our patients) tuberculosis. There are lots of lung diseases, but the most common ones (pneumonia, asthma, COPD [emphysema and bronchitis]) get thrown in the same big barrel as all the other medical conditions, spread out among all the other medicine teams on the regular wards. This particular ward I'm on now is limited to the tubercular.

It is a Manhattan version of the Magic Mountain. There are New Yorkers of unexotic ethnicity (Puerto Rican, say) who have AIDS; there are Asian immigrants who have had the misfortune to contract drug-resistant TB; there are the elderly and demented from Coler-Goldwater, who are exiled from their residence until their cultures come back negative, no acid-fast bacilli swimming redly past the eyepiece.

And then there are those who are under arrest, under Article 11.47(d)(5) of the New York City Health Code. In other words: they have TB, and they can't or won't either take their medications or modify their behavior so as not to pose a risk of contagion; they have been warned, and now they are shut in. They are under (d)(5) hold.

This is justified by public health necessity, which is defined by the New York City Department of Health. On a case by case basis, the DOH balances the danger of contagion, the necessity of treatment, and the contingency of private circumstances.

I wish I had something wise to say here, something which would precisely trace this intersection so we could see it as clearly as pathologists see the offending acid-stained bacilli. All I can do - as usual - is ask myself questions while I immerse myself in the work the system requires of me in the name of the patients.

I've been thinking all day of the word "misprision," but I'm sure it's not as foreboding or relevant here as it seems.

TB, Airborne
Traveling XDR class.

Now the truth can be told: if I were the other night intern, I would have been taking care of the phthisic traveler a few days ago. Even though I didn't have the pleasure of putting on a mask and going into his room in Bellevue (sorry, "a New York hospital," as the first Times article coyly put it), I feel compelled to provide some information about a question we're all wondering about: how easy is it to get tuberculosis on an airplane?

You can't do that experiment. (Though it would be fun!) What does the literature say? Google Scholar gave me links to two articles. One of them talks about TB transmission from an infected crew member to his colleagues. The other, by Kenyon et al., is titled "Transmission of Multidrug-Resistant Mycobacterium tuberculosis during a Long Airplane Flight." We read in the abstract: "In April 1994, a passenger with infectious multidrug-resistant tuberculosis traveled on commercial-airline flights from Honolulu to Chicago and from Chicago to Baltimore and returned one month later. We sought to determine whether she had infected any of her contacts on this extensive trip."

In brief, their findings were as follows:

1. The researchers managed to get in touch with 802 fellow passengers, or about ninety percent of the people on the airplanes the woman traveled on -- a commendable effort.

2. Of these passengers, twenty-nine tested positive on the "TB skin test." Twenty-two of these had previous risk factors for tuberculosis, which means it's impossible to tell in this case (since the passengers weren't followed beforehand) whether their skin tests were positive before they ever took that flight.

3. Of the seven without previous risk factors for TB, six were on the longest flight the passenger took (a nine-hour jaunt from Chicago to Honolulu). They all sat in the same section, and four of them sat within two rows of the passenger.

The authors conclude, "The transmission of [the TB organism] that we describe aboard a commercial aircraft involved a highly infectious passenger, a long flight, and close proximity of contacts to the index patient."

How does this article relate to the now-famous globe-trotting lawyer? The kicker here is that the woman in the article was "highly infectious". To wit:

The index patient was a 32-year-old Korean woman, who according to relatives was taking no antituberculous medication but had previously been treated for tuberculosis — twice as an adolescent in Korea and once within the past two years in Japan — with unknown medication. She arrived in Honolulu in April on a tourist visa and was reportedly coughing and lethargic while staying with friends (Household 1) for five days. She then flew from Honolulu to Chicago and from Chicago to Baltimore, where she remained with friends (Household 2) for one month. Members of Household 2 reported a worsening of her symptoms, including progressive cough, lethargy, shortness of breath, fever, night sweats, and the eventual onset of scant hemoptysis. In May she returned to Honolulu, flying from Baltimore to Chicago and from Chicago to Honolulu. Eight days after returning to Household 1, she had an acute episode of hemoptysis, described as consisting of approximately 1 liter of bright red blood. Hospital evaluation revealed extensive pulmonary disease (Figure 1), and her sputum was highly positive (3+) for acid-fast bacilli and was culture-positive for M. tuberculosis. The patient died of pulmonary hemorrhage and respiratory failure five days after being hospitalized.

She died of TB shortly after the flights in question, and was highly infectious when she flew. Contrast this with the patient in this week's story, who has so-called "active" tuberculosis (the organism is in his blood) but does not appear to be either symptomatically ill or highly infectious (the amount of TB-causing organism in his sputum is low).

Was quarantining the passenger in this most recent case (or, rather, attempting to quarantine him) the right thing to do? Probably, since he is infected with so-called XDR (extremely drug resistant) TB, which is associated with a higher mortality rate. It's best to be on the same side, even though it's probably unlikely that anyone he traveled with got infected.

(However, I'll take the opportunity to mention that many organizations (schools and the like) use the TB skin test indiscriminately, without assessing their members' risk factors for TB, their infectiousness if they do test positive, and the resultant small likelihood of transmission even if they are infectious.)