Prosecutors in Camden, NJ, charged a home health aide accused of inadvertently exposing an elderly patient to Covid-19 early in the pandemic in what appears to be the only case of its kind. The patient, an 80-year-old woman, died of the disease in May last year.
The attempt to hold an essential worker criminally responsible for the spread of Covid-19 resulted in the worker, Josefina Brito-Fernández, 51, permanently losing her license to work and entering a probation program for fear of deportation. .
Brito-Fernández, through tears, said she was “destroyed” by the charges.
“I have a family here,” he said through a Spanish interpreter. “Five children and toddlers who need me.” The youngest are seven and eight years old. “All my children were suffering watching me cry at night.”
During the year prosecutors brought charges against Brito-Fernández, she said she “saw everything gray” and suffered in a way she would not wish on anyone. “It was the strength of God that carried me forward,” Brito-Fernández said.
Brito-Fernandez is a permanent legal resident of the Dominican Republic whose children and husband live in New Jersey. Even a lesser conviction would have resulted in the loss of your legal immigration status. Brito-Fernández was charged with the equivalent of five serious crimes.
“I think 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 resolve this,” said her attorney, Teri Lodge.
“I would have loved to have tried this case, and I think she would have prevailed. But juries are unpredictable and the risk of deportation was too great, ”Lodge said.
Experts said the Brito-Fernández case is a “unique” and “disturbing” example of the United States’ criminalization of disease transmission among vulnerable members of society.
“It’s really impossible to know who transmitted such an infectious disease as Covid, and of course there is so much asymptomatic transmission,” said Dr. Christopher Beyrer, a professor of epidemiology at Johns Hopkins University, whose work has focused, in part, on how HIV has been criminalized. “The idea of letting a court and jury try to figure it out is really unsettling.”
Covid-19 has sickened more than 33 million people and killed more than 590,000 in the US.
“It’s very emotional for her to think about these things,” said her son, José Fernández, 26. “It was a nightmare,” considering that he could “go to jail or think he might have to leave his children behind.”
Meanwhile, around the same time as Brito-Fernandez’s initial charges and just 10 minutes away, a nearby New Jersey gym was becoming a conservative celebrity cause by announcing its intention to subvert public health guidelines.
In one case, just days after Brito-Fernández was indicted, the Atilis Gym co-owners encouraged a protest outside their gym, which was broadcast live on the Fox News program. Fox and friends. The show’s host, Pete Hegseth, was unmasked, as were most of the contestants.
When local police arrived, they told the protesters that they were “violating” state executive orders. Then they said, “have a nice day” and walked away. TO incident video promoted by Atilis shows the crowd bursting into cheers.
Later, gym owners received the equivalent of a misdemeanor fine for disorderly conduct. The next day, the owners of Atilis reopened and saw protests again. This time the police gave the co-owners fines that could result in a $ 1,000 fine.
The incidents would precede months of refusal to follow public health guidelines and a accompanying legal battle with the state, which is trying to collect more than $ 100,000 in fines. More recently, the gym co-owner has advocated against vaccines, offering free memberships to people who refuse to get an injection. The Atilis Gym has been featured on Fox News at least 29 times during the pandemic.
“Yours is a unique case in the sense that you are a health worker, but we have seen that the rules of social distancing are being applied. applied against groups of black youth hanging out, ”said Anne Kelsey, an attorney with the Center for HIV Law and Policy.
Prosecutors continued the case against Brito-Ferandez until spring 2021, including as the Centers for Disease Control and Prevention (CDC) said. some healthcare workers may need to return to work although it is still positive for Covid-19 to mitigate the staff shortage.
The prosecution of the case also continued, as then Donald Trump ignored public health advice and maintained campaign rallies which turned into “super-spreader” events. At a Trump event in the White House Rose Garden, attendees were seated so close together that even outdoor seating did not prevent several from becoming infected with Covid-19.
“The criminalization of disease and disease transmission hurts marginalized people. Period, ”Kelsey said. The same story has been repeated through tuberculosis, typhoid and HIV, he said, as sexual and racial minorities and the poor have been disproportionately prosecuted for public health problems.
“Unfortunately, this is somehow 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,” Beyrer said.
New Jersey prosecutors indicted Brito-Fernandez on five counts in May of last year. The charges stem from a month earlier, when Brito-Fernández was caring for a bedridden 80-year-old Camden woman and two siblings with developmental disabilities. Two more adults also lived in the home.
Brito-Fernández bathed, fed, cooked and cleaned for the family. For these services, he earned $ 11 an hour from a staffing agency.
In mid-April, when the New Jersey lockdown was so strict, Brito-Fernández had to carry a waiver to travel as an essential worker, seeking care for what he assumed was a urinary tract infection.
A Covid test was done to be sure. No one at the testing center spoke Spanish, although they gave him a fact sheet in Spanish that he did not read. Brito-Fernandez does not speak English.
While caring for his patients the next day, Brito-Fernandez received a phone call telling him that he could be positive for Covid. She ran out of the house so fast she forgot her purse. She never came back. Two days later, you would get the test results confirming that you had Covid.
About a month later, the police questioned Brito-Fernández at his home. The 80-year-old woman had died. The police said in a early report They were notified by the woman’s sister. Brito-Fernández was charged the day after police questioned her.
In part, prosecutors hung up the case against Brito-Fernández on the grounds that she did not wear a mask at her patient’s home, although she did wear it while traveling there.
Problematically, the scientific understanding of the importance of mask use was rapidly evolving at the time, as was government guidance. Often times this guide was muddied by the highest official – the president.
“The CDC recommends the use of non-medical fabric face coverings as an additional voluntary public health measure,” Trump told reporters on April 3, two weeks before Brito-Fernández received a phone call to inform him that he had given positive in the test. “This is voluntary. I don’t think I’m going to do it. “
Brito-Fernández’s attorney said prosecutors never tested the genetic strain of Covid-19 that was allegedly passed on, and that a second home health aide who worked at home also did not wear a mask indoors.
A brief filed on behalf of Brito-Fernández said that the victim’s family did not want her to be prosecuted.
Local prosecutors recently approved Brito-Fernández for pretrial intervention, a program that avoids conviction but requires fees. Her admission to the trial program was conditional on permanently waiving her license to be a home health aide.
However, due to a press release issued by state prosecutors, it is unlikely that he would ever have been able to work in the healthcare sector again. The announcement of Brito-Fernández’s charges was covered by national media, including NPR Y Fox News.
“A case could be solved, sure, but once you have some contact with the criminal justice system, it multiplies easily,” Kelsey said. “One slip-up turns into another, and there could be really long-lasting repercussions.” Those potential complications could be “in addition to her own stress and trauma, because she will carry it with her too.”
The case also has the potential to dissuade people who know Brito-Fernández from getting tested, because if she had never received the call, she probably would not have been criminally charged.
“You can go to ‘Typhoid Mary,’ an Irish immigrant woman who was detained for many years for being a typhoid transmitter,” Beyrer said.
Laws used to criminalize the transmission of disease, Beyrer said, “very often, as with a lot of things in our criminal justice system, they really end up really, really going after the poor and people of color, and the most vulnerable in the margins ”.
Camden County prosecutors declined to comment on the case.
This article was modified on June 4, 2021 to clarify the legal terminology in the Brito-Fernández case. An earlier version also said that Brito-Fernández was told that he had Covid on the phone. In fact, they told him that he might have Covid and then he tested positive.
George is Digismak’s reported cum editor with 13 years of experience in Journalism