For months, many of us lived with the possibility of spreading COVID-19. Now, a home health aide in Camden, New Jersey has become the first to be charged with it as a crime. It’s the first time a healthcare worker is being held criminally liable for the spread of the virus.
The defendant, 51-year-old Josefina Brito-Fernandez, lost her license to practice because of the ordeal. She says her life has been “destroyed” as a result and has since entered a probation program for fear of losing her immigration status.
Singled Out for Negligence
Brito-Fernandez is a legal resident of the Dominican Republic whose husband and children both live in New Jersey. Any legal trouble could tarnish her immigration status, forcing her to leave her family behind.
The charges against Brito-Fernandez came down last May. At the time, she was caring for an 80-year-old woman with developmentally disabled siblings. She earned $11 an hour cooking, cleaning, and caring for the family.
At the time, she ended up seeking care for a urinary tract infection and was given a COVID test all in English, yet she only speaks Spanish. The next day at work, she got a call telling her she had tested positive.
Nearly a month later, the elderly woman died, and the police questioned Brito-Fernandez at her home. The authorities ended up hanging the case on her because she didn’t wear a mask while inside the patient’s house.
Instead of facing trial, Brito-Fernandez agreed to give up her medical license as part of a probation program, which means she will likely never work as a home health aide again. The family of the deceased patient has even filed a brief asking for Brito-Fernandez not to be prosecuted, but her legal problems are far from over.
“I do believe it was outrageous that she was charged in the first place, and equally outrageous that she had to give up her home health license permanently to get this resolved,” said her attorney, Teri Lodge. “I would have loved to have tried this case, and I think she would have prevailed. But are unpredictable, and the risk of deportation was too great.”
For months, Brito-Fernandez has lived in fear of losing her home and family. “I have a family here,” she said through a Spanish interpreter. “Five children, and small children who need me,” including a seven and eight-year-old. “All my children were suffering watching me cry at night.”
Legal experts say the criminal justice system is making an example out of Brito-Fernandez.
“It’s really impossible to know who transmitted a disease as infectious as COVID, and of course, there’s so much asymptomatic transmission out there,” said Dr. Christopher Beyrer, a professor of epidemiology at Johns Hopkins University, who also worked on the criminalization of HIV infections. “The idea you would let a court and a jury try to figure it out is really disturbing.”
Proving the cause of transmission has become nearly impossible in many cases of infection.
As for Brito-Fernandez and her family, the threat couldn’t be more severe. “It’s really emotional for her to even think about these things,” said her 26-year-old son Jose Fernandez. “It was a nightmare, considering she might go to jail or think she might have to leave her children behind.”
Authorities continued building a case against Brito-Fernandez up until Spring 2021. That was around the same time the CDC changed its guidance to allow healthcare workers to return to work, even if they have been exposed to COVID-19.
Anne Kelsey, a staff attorney at the Center for HIV Law and Policy, says the rules can play out differently for different groups of people, with immigrants, non-English speakers, and people of color facing the most risk.
“Hers is a unique case in that it’s a healthcare worker, but we’ve seen social distancing rules being enforced against groups of young black men hanging out,” Kelsey said. “The criminalization of disease and disease transmission hurts marginalized people. Period.”
She compares the current climate to several health crises of the past, including tuberculosis, typhoid, and HIV. Throughout history, she argues, sexual and racial minorities and the poor have been disproportionately prosecuted for public health problems.
In many ways, prosecuting individuals during a pandemic may do more harm than good.
“Unfortunately, this is in some ways a paradigmatic example of why punitive and legal approaches to public health problems almost invariably end up causing new problems, and not addressing any of the public health imperatives,” said Beyrer.
“A case could be resolved, sure, but once you have any contact with the criminal justice system it so easily multiplies,” said Kelsey. “One slip-up becomes another, and there could be really long-lasting repercussions.” Those potential complications could be “in addition to her own stress and trauma, because she’ll carry that with her too.”
Fearing criminal prosecution, the case can also dissuade people like Brito-Fernandez from getting tested for COVID-19. It’s not yet clear whether she will get to stay with her family in the U.S.