MRSA’s Third Wave: Part 3 – The Law

U.S. Attorney John Walsh

Two young men, brothers Eric & Ryan Jensen, stood shackled in a Denver, Colorado courtroom on the afternoon of September 26, 2013. They’re charged with six federal misdemeanor crimes related to a 2011 listeria outbreak which killed at least 33 people and sent 150 to hospitals across the country, including a pregnant woman who had a miscarriage as a result of her infection. Most of the cases involved people older than 60, and those who died were between 48 and 96 years old. If convicted, they each face 6 years in prison.

The brothers owned Jensen Farms in Colorado. They grew and sold cantaloupes countrywide. Federal prosecutors say they failed to properly clean their produce which led to it being contaminated with the poisonous bacteria listeria. Specifically, they failed to use a chlorine spray on the cantaloupes set up for that very purpose.

Led by the U.S. Attorney for the District of Colorado, John Walsh, the prosecutors dusted off a little-used law that dates back to 1975, called the Park doctrine, named after the accused in a case that was appealed all the way to US Supreme Court. The reason the case went to the highest court is that the doctrine places an extraordinarily high burden of responsibility on people who make a living by putting food, drugs, cosmetics, or medical devices into the public domain. Mr. Park and his lawyers, and much of the public, thought his conviction at trial was unfair, a case of misuse of the criminal law.

And for good reason. Because you will be convicted under this law even if you didn’t intend harm, even if you didn’t know harm was happening, and even if you didn’t participate in the activities that lead to the harm. The only thing that counts is whether or not you were in a position of responsibility in a company such that you could have done something about the circumstances that led to the injury to the public had you been aware of them. In other words, the law targets only the owners and managers of a company and holds them criminally responsible for the acts of others – their employees.  This represents  a huge departure from how the criminal law  operates because it is in essence imposing a criminal penalty- prison – for what has traditionally been only a civil law violation.

So what was the reasoning behind the court’s decision? Public safety. As the Court put it: “In this age of industrialism those in the business of delivering food, drugs or medical devices to the public, touch the lives and health of those people who are largely beyond self-protection.” In other words, there’s really nothing the public can do to protect themselves as consumers of these things, so the court has placed the whole burden of protection on the producers, upon pain of prison should anyone in the public get hurt.

Whether otherwise good people should be ruined and face prison time for harm they never intended much less even knew about is a tough question, that had to be resolved by the  Supreme Court. But why use the law now, a law that has gone virtually ignored for 38 years since its birth in 1975?

It’s crucial to understand that this is not a case about listeria, it could have been any pathogen that found its way into the nation’s food supply and ended up hurting people. And as we have discussed in parts 1 & 2 of this series, there is a rising tide of foodborne illness – the pathogen studied was MRSA – infecting the community because of the new way we are producing our food, the so-called factory farm system. What’s more, this shift in food production method is expected not just to continue, but to increase, because of the demands of  a rising population and by the lure of money to be made by these companies in government brokered international trade deals.

These background social  forces are augmented by the immediate circumstance, well documented in the medical literature, of (1) a general overuse and misuse of antibiotic drugs, (2) a corresponding increase of resistance by the bugs to the very antibiotics being used against them, rendering the drugs useless, and (3)  an antibiotic pipeline devoid of new antibiotics because drug companies find it more profitable to develop other kinds of pharmaceuticals.

So where does that leave us? In essence — at the hospital. That seems to be where we’re  circling the wagons to fight the rising tide of foodborne illness in general , and this Third Wave of MRSA in particular. Because regardless of how or where a pathogen finds you, it’s the hospital you go to for help.

About 10 days ago, on  October 22, Winnipeg’s flagship hospital, the Health Sciences Centre, held a day long conference on Infectious Disease, called “Bug Day.” As you walked into the medical school through a large set of doors, maybe a half a dozen or so doors wide, there were signs posted, all in row in big red letters saying “Wash Your Hands.” Once inside the lecture theater one infectious disease specialist after another emphasized the importance of hand washing, especially by hospital staff, as a way to fight the bugs. Then they put up a slide showing hospital staff compliance rates with the hand washing rule: it was roughly 50%.

The next time I walked through those doors with the big red signs about hand washing I remember thinking: Is that it? Is that all you got as a line of defense? Because as the waves of infectious disease continue to lap up on hospital shores, you seem to be fighting back with something that is quite literally — paper thin.

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