Issues of Liability in Emergency Response




Acknowledgments


Thanks to Alysa B. Koloms and Pooja Patel for their contributions to this chapter.



Whenever a doctor cannot do good, he must be kept from doing harm. —Hippocrates


Organized and professional emergency response has become a frequent and expected reaction to the present-day disaster, be it natural, human-made, or an act of terror. Over the course of the last century, the proliferation of media technology, including television, the Internet, and handheld multimedia devices, has spawned a progressively hyperaware and instantly informed society that has come to expect that every catastrophe be met with an instant, competent, and efficiently executed response by the emergency responder. This evolving expectation has naturally led to the necessity of organized state- and federally sanctioned response teams, as well as legislation to both oversee and protect the responder regarding issues of liability, which may arise from the administration of care. Catastrophic disasters and emergencies invariably demand medical assistance from professionals and laypersons alike. Although, generally, the law does not impose an affirmative duty to assist those in peril, public policy suggests that any emergency responders should be shielded from subsequent liability stemming from the aid they deliver. Accordingly, laws have been crafted to establish immunity, to encourage individuals to render aid without fear of future litigation. These laws are colloquially known as “Good Samaritan” laws. By 1980, all 50 U.S. states had enacted variations of Good Samaritan laws. Although these laws were originally drafted to protect physicians, nurses, and other medical professionals, most Good Samaritan laws now protect the general citizenry from liability as well. Good Samaritan laws were drafted to incentivize volunteerism in emergency situations; however, the disparate application of these laws by courts to varying situations across the country has resulted in criticism from the legal community. Moreover, many of these laws do not address volunteer organizations and agencies, whose sole purpose is to assist in delivering aid during and in the aftermath of disaster-like situations. Prompted by the attacks on 9/11 the World Trade Center in New York and the subsequent barrage of litigation, federal, state, and local governments have attempted to provide additional safeguards for emergency responders. For instance, the Centers for Law and the Public’s Health drafted the Model State Emergency Health Powers Act (MSEHPA), which proposes a series of statutes designed to assess and declare public emergencies. The MSEHPA provides for more comprehensive and broader immunity for both private individuals and volunteer entities. Since the MSEHPA’s “Good Samaritan’s” publication, several states have adopted their own legislation based upon the provisions of the MSEHPA.


Even though emergency responder law and general response infrastructure has drastically changed over the course of the last 50 years, the threat of litigation for responders remains viable. For instance, in the aftermath of Hurricane Katrina, several health professionals were forced to render aid in less-than-ideal circumstances. Hospitals, dealing with the stress of the storm, including loss of power, overcrowding, and flooding, put medical personnel in difficult positions in terms of their ability to deliver proper aid. One treating physician became the target of several wrongful-death law suits, which allege that she expedited the deaths of several critically ill patients to make space for others. Further evidence of the continuous threat of legal liability in emergency response can be seen in the wake of the school shooting at Sandy Hook Elementary School in Newtown, Connecticut. Although subsequently withdrawn following the public outcry of discontent, at least one civil lawsuit was filed in connection with the shootings’ immediate aftermath. The lawsuit sought $100 million in damages on behalf of a 6-year-old survivor, related to the State of Connecticut’s inability to render aid properly. Even though emergency responder law has been a part of American jurisprudence for quite some time, the laws governing response and those who respond are constantly evolving in reaction to societal change. A proper understanding of this law and all attendant immunities is necessary before delivering emergency care. The first step in doing so requires an overview of the legal system and the various sources that comprise emergency responder law.




Historical perspective


History of Emergency Response Management


Governmental emergency response management is not a new concept. It was first introduced in the United States in 1803. In response to a series of fires that swept through Portsmouth, New Hampshire, and recognizing the need for an organized and coordinated response, a Congressional act was passed that contained within it the first national disaster legislation in U.S. history. Over the course of the next century, building upon the lessons of Portsmouth, Congress implemented an ad hoc approach to dealing with national disasters, enacting over 100 separate acts to deal with catastrophic events such as the Chicago Fire of 1871, the Texas Hurricane of 1900, and the San Francisco Earthquakes of 1906. Each act was enacted to respond to and deal with the unique needs of the individual events.


In the early 1930s, organized federal response to natural disasters gained a foothold with the establishment of the Reconstruction Corporation, the Flood Control Act, and the Bureau of Public Roads. Federal intervention and response became a popular and apparently necessary idea that resonated throughout the national psyche. By the 1940s, the popularity of these programs led to the creation of civil defense programs, including air raid warnings and emergency shelter systems to protect the public in the event of a military attack on American soil. In 1950, the landmark Disaster Relief Act was passed. The act for the first time granted the president the authority to issue disaster declarations, allowing for the mobilization of federal agencies to assist in both state and federal governments in the event of an emergency, catastrophe, or major disaster. The Disaster Relief Act was not designed to supersede but rather supplement and orchestrate state and local government response. Throughout the 1950s, emergency management concentrated on civil defense and wartime preparations. It was not until a series of natural disasters, occurring from the early 1960s through the early 1970s, that the federal government recognized the necessity of a specialized organized and federal response to natural disasters, and thus enacted the Disaster Relief Act of 1974, which provided the president with the authority to declare a national disaster. Though clear federal response mechanisms were then in place to deal with a broad scope of major disasters, the overall efforts of the agencies remained disjointed; with over 100 different agencies in place and in operation at any given time. Recognizing the necessity of a centralized and coordinated response system in 1979, by executive authority, President Carter enacted Executive Order 12148, creating the Federal Emergency Management Agency (FEMA), thereby centralizing disaster response under one coordinated federal effort. In its infancy, FEMA struggled with its efficiency and response, failing to come together as a cohesive organization. In 1992, following Hurricane Hugo, the Federal Response Plan (FRP) was developed in the wake of growing frustration with the lack of organization. The FRP defines the structure for coordinating, organizing, and mobilizing federal resources. Today FEMA has over 7000 employees and an annual budget of almost $11 billion.


Undoubtedly, one of the most prevalent landmark events in the evolution of organized emergency response management was the 9/11 attacks on the World Trade Center in New York City. Less than 2 weeks following the attacks, Pennsylvania Governor Tom Ridge was appointed as the country’s first director of Homeland Security, despite the fact a Department of Homeland Security did not yet exist, demonstrating the political response to the public’s need for a visible and dedicated federal terrorist prevention and response agency. On November 25, 2002, the Homeland Security Act was passed, establishing the Department of Homeland Security (DHS). The DHS was created with a prime directive of not only protecting the United States and its citizens from acts of terror but also responding to both human-made and natural disasters. The establishment of the DHS unified and consolidated 22 separate federal agencies under one centralized cabinet agency. On February 28, 2003, Homeland Security Presidential Directive 5 (HSPD-5) was issued, directing the secretary of Homeland Security to develop and administer a National Incident Management System (NIMS) to provide a consistent nationwide plan for government, nongovernmental organizations, and the private sector, to coordinate disaster response. HSPD-5 requires all federal departments and agencies to adopt NIMS and to use it in their individual incident management programs and activities, as well as in support of all actions taken to assist state, tribal, and local governments. In New York, an appellate court determined that failure to comply with a mandatory, nondiscretionary NIMS directive could result in civil liability in the event of injury or death. Now, response to a major disaster, terrorist attack, or natural catastrophe involves the coordination of a multitude of governmental, quasi-governmental, and private agencies, including local, state, and federal responders. A byproduct of the evolution of federal and state organized response is the expectation that a responder be held to a legally reasonable standard of care, by which that responder may be held liable under the U.S. civil legal system. Though responders are protected by rights and immunities to act within their discretion in the administration of emergency care, there has been a marked decline of the application of responder immunity and protection over the last several decades, in a further effort to emphasize a patient’s rights to be afforded proper and reasonable care under the standard. Much like a general practitioner, surgeon, or other licensed medical provider, an emergency responder is expected to deliver specialized medical care in a manner that is generally acceptable in the field that demonstrates, at a minimum, a baseline level of competency in implementation of care. The philosophy behind the application of a standard of care to emergency response is to ensure that medical care is administered in a professional, acceptable, and standard method; to heighten a responder’s awareness of a patient’s rights in the administration of care; and to deliver effective and competent medical treatment. Ironically, disaster response, by nature, is anything but standard. Thus the obvious paradoxical question to be posed is how can a reasonable standard of care be measured during the administration of medical care in an otherwise chaotic or catastrophic situation?


Basic Concepts of Law


As discussed previously, and more thoroughly discussed in the immunities section below, emergency responders have several legal shields that will safeguard them from the imposition of liability. However, it is important to understand the concepts of law that are evaluated by a court of law when determining an emergency responder liability. For a responder to be held liable for acts rendered in an emergency, the plaintiff will have to demonstrate that the responder acted negligently. The tenets of negligence require that the plaintiff prove the following elements as a prerequisite to a finding of liability: duty, breach, causation, and damages. With regard to duty, although it is true that most states do not require persons to deliver aid to a person in an emergency, once a responder chooses to act, she is required to do so with reasonable care. Reasonable care requires that the responder act with the degree of caution that a similarly situated ordinary person would act with under identical or similar circumstances. “Similarly situated” takes into account the responder’s knowledge at the time aid is delivered. Accordingly, if the responder has a heightened degree of medical knowledge, the responder’s actions will be judged with that knowledge in mind. Consequently, breach is established if a court determines that the responder did not act reasonably under the circumstances. Breach of a duty of reasonable care does not necessarily mean that liability attaches. Instead, the plaintiff must prove that the emergency responder’s breach caused the injury. If the plaintiff was harmed by something other than the responder’s breach, then policy, fairness, and justice demand that the responder not be held liable for any injuries suffered by the plaintiff. The last element in a negligence inquiry is the harm a plaintiff suffers because of the responder’s breach. The harm element requires the plaintiff have damages that can be redressed in a court of law.


Although the above discussion represents a small overview of the principles of negligence, as illustrated below, several states have created their Good Samaritan laws to circumvent a negligence analysis to incentivize responder action without fear of liability.




Current practice


Basis of Law


Medical malpractice and emergency responder liability claims are rooted in tort law. A tort is a violation of a duty owed by one to another that is set in law and is other than an agreement, which would constitute a contract. When the duty is breached, the grieved party may seek compensation for damages. Medical malpractice and negligent emergency response is considered a tort under the law; the legal issue at the center of these claims is the breach of a duty owed to the patient by a medical provider. The body of law known as torts is not a product of malpractice actions, specifically but rather an evolving body of law that over time has adapted and conformed to the legal needs of an ever-changing society. The history of American tort law can be traced back to actions of trespass to both property and person, with the roots of American tort law found in English common law, from which our civil justice system was born. A medical malpractice or medical tort claim is a civil action in which a patient or party seeks compensation for the acts or omissions of a medical provider who failed to practice to the accepted standard of care.


The Judicial System


In the United States, individual rights are grounded in the U.S. Constitution, as well as individual state constitutions. The U.S. Constitution sets forth the bedrock of individual rights, whereas state constitutions may broaden or limit its citizenry’s individual rights, as long as any such variation is not in direct conflict with the U.S. Constitution. Both the U.S. Constitution and state constitutions establish the framework for the implementation of executive function, governing laws, legislatures, and judicial authority on both the federal and state levels. Legal authority within this framework is derived from statutory law, treaties, administrative regulations, and common law. Overwhelmingly, state jurisprudence has governed issues arising in the medical profession, specifically in the individual state court systems, when dealing with issues of malpractice or negligence. An increased number of legal actions against medical providers have lent themselves to a continued battle over tort reform and limitation of liability in attempt to control the costs of jury awards, which has in turn, increased the costs of medical malpractice insurance and the overall costs of medical care. In the context of disaster response, however, both U.S. and state constitutional rights have been challenged on the most basic of levels when the need for government infringement of such rights is necessary for the common good (i.e., quarantine, martial law, and forced decontamination). The proliferation of disaster response over the past several decades has influenced and effected a broadening of administrative and legal authority over individual rights.


Courts


In both the federal and state systems, a tiered court system functions to interpret and apply the law of a given case. Individuals have a constitutionally protected right to have disputes and questions of law decided within the appropriate judicial system. When a dispute arises, a party may file a lawsuit with a court, invoking that court’s authority over the opposing party, as well as the question of law in dispute.


All jurisdictions, both federal and state, are based upon a tiered, hierarchical court system, in which the highest court of the system may control and reverse the decisions of the lower courts. The U.S. Supreme Court is the highest court in the U.S. judicial system; it issues decisions that control and effect all rulings and decisions of the federal appellate and trial courts. The U.S. Supreme Court may also influence and control some decisions and ruling of a state court, as well, when issuing a decision regarding the U.S. Constitution or a federal law that is preemptive over state law. In contrast, however, a state’s Supreme Court decisions, though controlling over its own state’s appellate and trial court system, would not be controlling in a sister state or over any federal court addressing a question of federal law.


Venue


The venue is the geographic locality in which a legal question is to be adjudicated. The majority of medical malpractice cases are based upon state law, and thus are venued in state court. However, a case may be brought in federal court either if there is a diversity of citizenship, a question of federal law, or the case involves a federal employee. Diversity of citizenship exists when an individual or legal entity’s residence is of a different state than that of the individual or entity bringing the action. Individual venues also exist within individual states. State courts are often organized according to district or county on a statewide or citywide basis. Cases typically may be brought in the district or county in which a party resides or the incident at issue occurred. Juries are selected according to the district or county in which the case is venued and are commonly referred to as “jury pools.” A jury pool is the geographic location from which a court may summon potential jurors for voir dire: the process of juror selection. The geographic location of a venue is often one of the deciding factors in the outcome of a given case. Both plaintiff and defense attorneys review and study the jury verdicts of differing districts or counties to determine the probability of a successful outcome in a given location. This practice has lent itself to what is commonly referred to as “forum shopping,” whereby a party will labor to venue a case in the geographic location that would be most advantageous to a successful outcome of a case. In instances where a case involves parties from multiple geographic locations, the opportunity to forum shop increases. In the case of emergency-response liability, the probability of such a scenario increases, given the likelihood of multiple victims and/or responders residing in different cities and states. In addition, a party may also move to change the venue of a trial, based upon a potential prejudice of a jury, which may deny a party their constitutional right to a fair and impartial jury. More often than not, such a request is made on behalf of a defendant. By way of example, on April 19, 1995, Timothy McVeigh and Terry Lynn Nichols, using an ammonium nitrate-based explosive hidden in a moving truck, destroyed the Murrach Federal Building in Oklahoma City, Oklahoma: in the explosion, 168 people were killed. In preparation for trial, the defense made a Motion for Change of Venue, requesting the trial be moved from Oklahoma to Colorado. The defense argued to the court successfully that, given the horrific nature of the event, including the destruction of a daycare center and the killing of 15 children, McVeigh would be denied due process of law under the Fifth Amendment and his right to a trial by an impartial jury under the Sixth Amendment because the jury pool had been tainted with negative publicity and personal sentiment.


Case Law


In deciding issues of law, courts are expected to follow “common law” or precedent, case law that has been previously decided on similar or identical issues of law within the court’s jurisdiction. A court will decide a case pursuant to prior rulings or decisions of the Court’s jurisdiction, referred to as stare decisis . If there is no precedent case law directly on point within the jurisdiction in which the issue is at bar, a court may look to other jurisdictions for guidance. Reference to an alternate jurisdiction’s case law is referred to as dicta , and, though not controlling, it can be influential in deciding a case of first impression.


Standard of Care


In an action involving an emergency responder, prior to deliberations, a jury would be instructed by the trial judge regarding the law governing the responder’s actions in question and the basis upon which a jury may weigh the evidence presented at trial. This is called the “jury charge.” The jury is instructed to decide, based upon the evidence presented, if the defendant’s actions conformed to the standard of care commonly accepted, in the jurisdiction in which the case is venued. The standard of care may be established by way of state or federal law, regulatory law, case law of a jurisdiction, or testimony of an expert witness and is the standard by which a responder’s actions are measured to be reasonable or not under the given circumstances. A responder would be negligent if the measures taken to assist a patient did not rise to the degree of care that a reasonably prudent responder would have exercised under the same circumstances.


In the absence of regulations, statutes, or common law, expert witnesses may offer testimony as to the accepted standard of care. Experts are disclosed prior to trial regarding the particular field about which they will testify. Attorneys may depose an expert witness prior to trial and, if deemed appropriate, move to preclude the expert from trial based upon the expert’s lack of competency or experience regarding the expertise in which he or she was disclosed. Expert witness testimony, in the absence of controlling law, is powerful and often pivotal as to the outcome of a case. In many situations, a jury will hear evidence from several experts, often with differing opinions. It is the duty of the jury to weight the testimony, credentials, and credibility of each expert to decide what standard is applicable to a case.


Although on its face, the concept of emergency response appears to be universal, the standard of care may differ from state to state, depending on the jurisdiction in which the action is pending. In general, the standard of care is considered the acceptable or minimal level of competency exercised by an emergency responder in response to a specific situation or applied treatment in the jurisdiction in which the case is tried. However, the legal concept of negligence, which is then applied to the standard of care, is generally consistent throughout all jurisdictions. The concept of negligence was originally developed under English common law, and it is commonly defined as failing to act as a reasonable or prudent person would do in a similar situation. Negligence does not rise to the level of wanton or reckless action, but rather to the omission of reasonableness, and it is broken down and analyzed by way of the following four elements:



  • 1.

    Duty: Did the responder establish a relationship with the patient that created a legal obligation of the responder to the patient?


  • 2.

    Breach: Did the responder’s actions fail to meet the established standard of care, thus breaching his or her duty to the patient?


  • 3.

    Injury: Did the responder’s breach of duty to the patient result in an injury that naturally flowed from the responder’s actions? Injuries may include physical or psychological injuries, damage to property, or violation of a patient’s legal rights. In some circumstances, injury may also be defined as a third party’s observations of a responder’s actions, which resulted in emotional or psychological distress to the third party. The question of injury often leads to further analysis of the patient’s claimed injuries—did the claimed injury predate the alleged negligent act? Could the claimed injury have naturally flowed from the responder’s breach of his duty?


  • 4.

    Damages: Assuming the responder breached his duty of care to a patient and the claimed injuries naturally flowed from the breach, what if any award should be given to compensate and “make whole” the plaintiff. The question of damages often includes a multidimensional analysis of economic and noneconomic injury (i.e., medical bills, future cost of treatment, lost wages, impaired earning capacity, and pain and suffering).



The Role of the Jury


The majority of states and all federal courts allow a party to an action to request a trial by jury, as opposed to a bench trial, in which a case is decided solely by the trial judge. Jury section, or voir dire, is the process by which jurors are selected by the lawyers involved in a particular case to serve as a member of a jury. Potential jurors are summoned from the court’s geographic district for the selection process. The process of jury selection differs throughout the various jurisdictions. Either potential jurors are accepted as jurors or excused for cause, or an attorney may exercise a preemptive challenge and dismiss a juror without cause. The numbers of preemptive challenges an attorney may exercise are often limited per the rules of the jurisdiction. The federal system and the most common state court method utilizes the “in the box” method of selection, whereby a panel of potential jurors collectively is questioned regarding any prejudices or conflicts they may have that would impede their ability to decide a case impartially. Some states’ jury selection process is completed individually. In Connecticut State Court, for instance, jurors are instructed as to the general facts of a case as a group but are questioned individually as to potential conflicts. Individual voir dire is often much more time consuming than “in the box” voir dire, and it may cause the jury selection process to last for weeks rather than days. Conflicts or prejudices that may arise, which can result in the dismissal of a potential juror for cause, may include personal knowledge or relationship with a party to the action, an expert involved in the case, a fact witness, or a treating physician. Other reasons for dismissal as a juror for cause may be personal prejudice or political activism at odds with the legal issues of the case. By way of example, in the case of a medical malpractice action, a potential juror may be dismissed for cause if that juror had been treated by the defendant physician in the past. Such a relationship may cause a juror to decide the outcome of the case on their previous experience as a patient rather than the evidence presented in court.


The Role of the Trial Judge


Judges play many roles within the judicial system. In the context of a liability action, a judge is charged with the duty of recognizing, applying, and interpreting the relevant law for each specific case and has the responsibility of safeguarding the rights of both the plaintiff and the defendant throughout the litigation process. Several judges may be involved throughout the litigation process. At trial, however, a case is heard by one judge. The trial judge must at all times function as an impartial arbiter of the law and avoid any impropriety or the appearance of impropriety in all his actions throughout a case. If necessary, a trial judge must recuse himself in any situation in which he may doubt his ability to preside over a case impartially or whenever he believes his impartiality can reasonably be questioned. A trial judge is present to decide issues of law within a case; it is the role of the jury to decide the case.


The Attachment of Liability


In terms of assessing liability, the inquiry must be done on a state-by-state basis. As indicated above, almost all states’ legislatures have a codified Good Samaritan law. Although it is important to consult with your state law, an examination of the standards of care of various states is nonetheless instructive. Under Maryland, Alabama, Massachusetts, New Jersey, Oklahoma, Virginia, Wisconsin, West Virginia, Wyoming, Michigan, and North Dakota law, for example, liability will only attach if the emergency responder is found to be acting with gross negligence or willful misconduct. This is a much higher threshold than that of reasonable care described in the foregoing section. The standard will only be satisfied upon a showing of “wanton or reckless disregard for human life or the rights of others.” For instance, when a paramedic was delivering aid to a plaintiff experiencing an asthma attack, yet failed to administer oxygen, which ultimately led to plaintiff’s death, a Maryland court nonetheless found this conduct below the “gross negligence” standard required to impose liability. Under reasonable care, however, the paramedic would have likely been subject to liability.


As illustrated above, gross negligence is the highest standard that needs to be demonstrated to support a showing of liability. Accordingly, the following standards of care require a lower burden to substantiate liability. Iowa, for example, will provide civil immunity to emergency responders if the responder acted in good faith. However, good faith can be overcome if the acts in question are found to be reckless. Even though the Iowa statute does not define reckless , nor has case law clarified this term, it appears that any standard of negligence would qualify in order to impose liability, including a breach of reasonable care. Although Iowa is one of a number of states to provide the affirmative defense of good faith, several states, including Delaware, Montana, Nebraska, and Washington, do not provide a good faith defense. Instead, the plaintiff need only prove negligence in order to support a finding of liability; the responder’s state of mind is not considered by the court. Although understanding the common principles of negligence is exceedingly important to comprehending responder liability, it is essential to consult your state’s law, as Good Samaritan statutes vary greatly.


Immunities


Several legal immunities serve as affirmative defenses against the threat of litigation relating to the actions of an emergency responder. Immunities do not prohibit a potential plaintiff from filing a lawsuit against a responder, but they do afford an absolute defense to the claim. Accordingly, the party asserting an affirmative defense of immunity would bear the burden of proving that the immunity is applicable.


Good Samaritan Laws


At the foundation of the immunities associated with emergency responder law are the varying Good Samaritan laws found in every state. As indicated above, these laws protect individuals who gratuitously attempt to render aid in emergencies. A Good Samaritan is an individual who assists a victim at the scene of an injury or sudden emergency, when he or she has no obligation to do so. Good Samaritan laws reduce the barrier of liability by providing immunity from liability for ordinary negligence. Originally, these laws were designed to protect physicians, but some states have extended protection to laypersons as well. The Good Samaritan laws do not always exclusively apply in disaster-like situations; 24 states provide immunity for individuals who render emergency care in hospitals on a case-by-case basis. It should be noted that the immunity offered via Good Samaritan laws is not absolute. For instance, should the individual rendering aid fail to exercise reasonable care, thus exacerbating the injuries, the responder could face liability. There is no federal Good Samaritan law. Accordingly, it is important to understand the extent of immunity available in your state.


Federal Tort Claims Act


Emergency response measures are generally governed by federal agencies, most often the FEMA and The National Disaster Medical System (NDMS) teams. FEMA and NDMS teams are deployed to disaster-like situations to provide aid. Any potential liability stemming from the aid rendered by a federal agency is subject to the provisions of the Federal Torts Claims Act (FTCA). Under the act, federal responders are considered federal employees and are immune from lawsuits, with the federal government acting as the primary insurer. The FTCA allows for patients who have suffered injury by the negligent or wrongful actions of a federal responder to have access to compensation, without bringing a legal action against the responder directly. The FTCA so provides that “a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action is entitled to judicial review.” Even though the FTCA seemingly provides legal redress by those aggrieved by federal emergency responders, there are several provisions that serve to limit potential liability. For instance, the FTCA immunizes the federal government from liability for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency.” Subsequent case law has cited this discretionary function provision of the FTCA to excuse federal agencies from liability in emergencies.


Volunteer Protection Act


The Volunteer Protection Act (VPA) was an early act of federal legislation in the emergency responder body of law, signed into law by President Bill Clinton in 1997. The VPA attempts to provide immunity to the nonprofit organizations and governmental entities that deliver care in emergencies, and it preempts any state laws that are inconsistent with the act; a state that wishes to have more protection under the VPA may, but any state law that limits the VPA is preempted. Essentially, the VPA establishes immunity for volunteers who are providing services for a not-for-profit organization. The VPA only applies to uncompensated volunteers who provide services to 501(c)(3) and 501(c)(4) organizations. However, the VPA enumerates several prerequisites that must be fulfilled to qualify for immunity under the VPA; a volunteer must obtain relevant licenses and certifications in the state where the harm occurred. Immunity is not available where the court deems that the harm was caused by “criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed.” In addition to adopting the provisions of the VPA, all 50 states have also enacted variations of their own VPAs.


The Emergency Management Assistance Compact


The Emergency Management Assistance Compact (EMAC) is a federal initiative that was drafted to assist in the coordination of disaster relief efforts between federal, state, and local governments. Several provisions of this act address state and federal personnel offering and receiving assistance. The act enables states to share resources during a disaster or catastrophic event. The EMAC is administered and coordinated through the National Emergency Management Association. Employees or officials of a party state administering aid in another state are considered agents of the state requesting aid for tort liability and immunity purposes. Per the act, no party state or its employees or officials rendering aid in another state shall be liable because of any act or omission in good faith. Article VI of the EMAC specifically shields a properly licensed state official from liability associated with rendered aid. Even though the EMAC provides a degree of uniformity and consistency in the assessment of liability of an emergency responder, it only applies to state officers. Accordingly, its provisions would not apply to a private citizen. The EMAC acts to complement the federal disaster response system. Moreover, the EMAC is utilized both in concert with or in lieu of federal assistance, depending on the needs of the assisted state, which theoretically ensures the continuous and uninterrupted flow of necessary aid.


The Uniform Emergency Volunteer Health Practitioners Act


Although, as noted, there is no federal Good Samaritan law that operates to immunize emergency responders uniformly, the Uniform Law Commission has drafted a model initiative entitled the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA). The UEVHPA, drafted in the aftermath of Hurricane Katrina, was created in response to the overwhelming need for licensed volunteer medical providers. The act attempts to expedite the deployment of aid to emergency situations and to protect licensed responders from future liability by recognizing during a declared emergency the license of a health care provider from a sister state. However, these volunteers must be registered with a federally or state-managed volunteer registry to be eligible for any legal immunity. Therefore ordinary licensed medical practitioners who are not part of the registry, and laypersons, cannot find protection under the UEVHPA. The model legislation offers two alternatives for dealing with issues of liability: a state may offer clear immunity for volunteers from civil liability for acts that occur while providing health or veterinary services or, essentially, may replicate and utilize the existing liability protections found within the VPA. A handful of states have adopted the UEVHPA in full, whereas others have adopted certain sections.


The Model State Emergency Health Powers Act


As aforementioned, in response to the attacks on the World Trade Center in New York and ongoing threats of biological warfare, the MSEHPA was drafted to serve as a model for states to coordinate a timely response in the event of a disaster. Unlike the EMAC and the UEVHPA, the MSEHPA does indeed provide immunity for private individuals who deliver emergency medical care. However, the MSEHPA imposes liability upon individuals if the aid rendered is deemed to be grossly negligent or willful. Even though the MSEHPA would certainly solve the inconsistencies spawned by the Good Samaritan laws and other disparate federal laws attempting to shield volunteers, it is a piece of model legislation, not actual law. However, 33 states have introduced 133 bills, all based on the MSEHPA. Several of these bills provide immunity for emergency responders. Many civil liberties organizations have opposed the model bill as written, as the bill’s broad-sweeping powers allow health care providers to take such actions as forced vaccines, without voluntary or informed consent. In addition, the model bill includes provisions to allow for state militia to seize homes, cars, telephones, food, fuel, clothing, firearms, and the like, as well as to arrest, imprison, and forcibly examine, vaccinate, and medicate citizens without consent, without being held liable for any harm that may come about from the use of these powers. In an extreme example, under the MSEHPA as written, a person could be forced to accept a vaccine to which they have an allergy. In the event, if the individual died because of a reaction to the vaccine, the medical provider who administered or forced the vaccination could not be held liable.

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Aug 25, 2019 | Posted by in EMERGENCY MEDICINE | Comments Off on Issues of Liability in Emergency Response
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