Posted on November 12, 2018 by Jeffrey Haynes
On August 20, 2018, a Michigan state district court judge bound over Nick Lyon, the current director of the Michigan Department of Health and Human Services, for trial on two counts of involuntary manslaughter and one count of misconduct in office arising out of the deaths of two men from Legionnaire’s disease at a Flint-area hospital. In a rambling opinion read from the bench, district judge David Goggins found that two elderly men with prior health problems contracted Legionnaire’s disease at Hurley Hospital and died in 2015 because the health department director failed to give public warnings until January 2016 of outbreaks of the disease in the Flint area in 2014-2015.
Contradictory testimony linked Flint water to the outbreaks generally but did not establish that Flint water was the cause-in-fact of spreading the disease. The challenge of establishing that Flint water was the specific source of the disease for the decedents was made more difficult by the fact that the hospital was already hyperchlorinating its water supply. In theory, at least, hyperchlorination should have eliminated the Legionnaire disease toxin.
Apart from the causation question, the result does not easily square with Michigan law. In Michigan, misconduct in office is a common law felony. Caselaw defines misconduct in office as including (1) conduct in the exercise of the duties of the office or done under color of the office; (2) discretionary acts that were either misfeasance or malfeasance; and (3) acts that represent “corrupt behavior.” Examples of corrupt behavior would be enriching oneself or one’s friends while performing duties of one’s office.
The public health statute requires public notice based on the director’s “determination” that an “imminent danger to the health or lives of individuals” exists. The court found probable cause to believe that the director’s failure to give notice of an outbreak of Legionnaire’s disease was corrupt behavior.
The preliminary examination transcript is thick with evidence of negligence of department staff in responding to local health department requests for help. The evidence also showed that the director was concerned about panic from a public notice and saving the state money by not addressing the disease outbreak. But the transcript is thin on whether corruption was the basis for the misfeasance. The misfeasance was surely bad judgment. But there was no evidence that corruption motivated the director in exercising his discretion in the timing of the notice.
The result may not be surprising in view of the desire of Flint citizens to punish state actors involved with the crisis, combined with the pressure that may be created on judges who are elected by the same citizens. The current attorney general ran for governor in part based on the state spending over $26 million prosecuting state actors in the Flint water crisis. He lost. His successor, the Democratic attorney general-elect, must now decide whether she wants to continue spending similar amounts prosecuting members of a Republican former administration or work with the Democratic governor-elect to spend the state’s money fixing the Flint water system. The state may not have money to do both. And if that is true, perhaps prosecutorial discretion will give way to fixing the water system once and for all.