Liability and Other Legal Issues Concerning Volunteer Health Professionals in Emergencies –

Liability and Other Legal Issues Concerning Volunteer Health

Professionals in Emergencies – An Overview

James G. Hodge, Jr., J.D., LL.M. Lincoln Professor of Health Law and Ethics

Director, Public Health Law and Policy ProgramSandra Day O’Connor College of Law

Arizona State University

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Major Topical Areas

• Legal Triage In Emergencies

• Licensure Reciprocity

• Civil Liability, Immunity, and Indemnification

• Workers’ Compensation

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Assessing the Role of Law in Emergencies

Laws pervade emergency responses at every level of government:

• They determine what constitutes a public health or other emergency

• They help create the infrastructure through which emergencies are detected, prevented, and

addressed

• They authorize the performance (or nonperformance) of various emergency responses by a host of actors

• They determine the extent of responsibility for potential or actual harms that arise during emergencies

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Legal Triage

Government

Partners

Actors

Laws

Legal Triage in PHEs – Public health law in real-time

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Legal Triage

Legal triage refers to the efforts of legal actors and others to construct a favorable legal environment during emergencies through a prioritization of issues and solutions that facilitate legitimate public health responses

Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L. 2008; 64(2): 249-291.

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Legal Triage

Legal actors and others must be prepared to:

• assess and monitor changing legal norms during emergencies;

• identify legal issues that may facilitate or impede public health responses as they arise;

• develop innovative, responsive legal solutions to reported barriers to public health responses;

• explain legal conclusions through tailored communications to planners and affected persons; and

• consistently revisit the utility, efficacy, and ethicality of legal guidance.

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State of Emergency

Once an emergency has

been declared, the legal

landscape changes.

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Emergency Declarations

How the legal landscape changes depends on the type of emergency declared

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Multiple Levels of Emergency Declarations

LocalLocal

StateState

FederalFederal

Emergency

or

Disaster

Public

Health

Emergency

Emergency

or

Disaster

Public

Health

Emergency

“FEMA”

Emergency

“HHS”

Public

Health

Emergency

InternationalInternational

WHO

PHEIC

Emergency

Declarations

By Intl Govs

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Multiple Levels of Emergency Declarations

Local emergency or disaster

Local public health emergency

State emergency or disaster

State public health emergency

Federal “FEMA” emergency

Federal “DHHS” public health emergency

Public health authorities and powers, actors, liabilities, immunities, and other critical legal issues vary depending on the declared emergency

International W.H.O. Public Health Emergency of International Concern (PHEIC)

International Govts Emergency Declarations

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Emergency Declarations - State Approaches

Before 9/11: Existing state legal infrastructures focused on general emergency or disaster responses

“All hazards” approach

After 9/11:Reforms of emergency laws in many states are reformed to address “public health emergencies”

Based in part on the Model State Emergency Health Powers Act (MSEHPA)

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States That Define “Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Emergency” or similar termEmergency” or similar termdefined in state statutes - 39defined in state statutes - 39

Data Current as of April 1, 2008

“Emergency” Defined - Arizona

"State of emergency" means “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency, which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.” Ariz. Rev. Stat. § 26-301 (2006)

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“Emergency” Defined - Arizona

“Local emergency” means “the existence of conditions of disaster or of extreme peril to the safety of persons or property within the territorial limits of a county, city or town, which conditions are or are likely to be beyond the control of services, personnel, equipment and facilities of such political subdivision as determined by its governing body and which require the combined efforts of other political subdivisions.” Ariz. Rev. Stat. § 26-301 (2006)

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States That Define “Disaster”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Disaster” or similar term Disaster” or similar term defined in state statutes - 42defined in state statutes - 42

Data Current as of April 1, 2008

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“Disaster” Defined - Texas

"Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, other public calamity requiring emergency action, or energy emergency.

Tex. Gov’t Code Ann. § 418.004(1), (3) (Vernon 2003)

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States That Define “Public Health Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutes - 26state statutes - 26

Data Current as of April 1, 2008

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“Public Health Emergency” Defined - Arizona

“A state of emergency or state of war emergency declared by the governor in which there is an occurrence or imminent threat of an illness or health condition:

[1] caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin; and [2] that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.”Ariz. Rev. Stat. § 36-787 (2006)

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Emergency Powers - MSEHPA

Government is vested with specific, expedited powers to facilitate emergency responses

Individuals are bestowed special protections and entitlements

Hospital privileging requirements may be waived

Volunteer responders may be protected from civil liability

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Crisis Standard of Care

As defined by the Institute of Medicine, a “crisis” standard of care applies in declared emergencies, allowing for legal adaptation to changing circumstances and demands.

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Proliferation of Issues in Legal Triage

CrisisStandards

Allocation of Resources

Public Health Powers

Authority

VHPs

Liability

LegalTriage

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Major Topical Areas

• Legal Triage In Emergencies

• Licensure Reciprocity

• Civil Liability, Immunity, and Indemnification

• Workers’ Compensation

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Licensure Reciprocity - 1

Essential question: when can volunteer health professionals practice across state lines?

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Licensure Reciprocity - 2

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Licensure Reciprocity - 3

CA

OR

WA

NV

NM

UT

AZ

WY

CO

NE

KS MO

AROK

FL

GAALMS

LATX

WI

IA

MN

ID

MT ND

SD

NC

VAWV

KY

TN

OH

MI

INIL

VT

AK

HI

ME

NY

PA

RI

MA

NJ

CT

NH

SCDE

DC

MD

State has adopted NLC

State has not adopted NLC

State has pending legislation to adopt NLC

Adoption of the NLC Across States

Source: Nurse Licensure Compact, National Council of State Boards of Nursing. Available at: https://www.ncsbn.org/nlc.htm

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Major Topical Areas

• Legal Triage In Emergencies

• Licensure Reciprocity

• Civil Liability, Immunity, and Indemnification

• Workers’ Compensation

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Civil Liability - 1

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• What is civil liability?

Civil liability is the potential responsibility that a person or institution may owe for their actions, or failures to act, that result in injuries or losses to others.

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Civil Liability - 2

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• Who may face civil liability?

Volunteers

Health care entities that provide volunteers

Health care entities that accept volunteers

Persons or entities responsible for the registration system

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Civil Liability - 3

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• Legal theories:

Negligence

Intentional torts

Privacy

Misrepresentation

Discrimination

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Civil Liability - 4

Liability Risks to VHPs and Hospitals

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Umbrella of Liability Protections

Mutual Aid Agreements

Good Samaritan

Acts

Federal VPA

State VPA

EMACIndemnification

JCAHO Standards/Policies & Practices

MOUs

Insurance Coverage

State EHPA

Civil Liability Protections

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Civil Liability - Volunteers

•Legal provisions that may protect VHPs from liability:

Volunteer Protection Acts

Governmental (sovereign) immunity

“Good Samaritan” Acts

Emergency statutes

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Civil Liability – Volunteers

• Volunteer Protection Acts:

Federal and state Volunteer Protection Acts

No emergency required

Apply to volunteers for nonprofit and governmental entities only

Do not apply to organizations

Minimal compensation allowed to VHPs

Volunteer Protection Laws - Arizona

A volunteer is immune from civil liability in any action based on an act or omission of a volunteer resulting in damage or injury. The acts must be within the scope of the volunteer's official functions and duties for a nonprofit corporation or nonprofit organization, hospital or governmental entity.

Ariz. Rev. Stat. § 12-982  (2006)

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Civil Liability - Volunteers

•Governmental (sovereign) immunity:

Scope of immunity determined by Tort Claims Acts

May cover all government employees, including volunteers

No emergency required

Not absolute for egregious conduct

Volunteers in non-government settings are not covered

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Civil Liability - Volunteers

• Good Samaritan Acts:

Reduce the standard of careEmergency situation must exist, but not typically via declarationDo not typically apply to employeesMay not apply for pre-arranged or compensated volunteersNot applicable to egregious conduct

“Good Samaritan Laws” - Arizona

Health care providers licensed or certified to practice as such in this state or elsewhere, . . ., or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons. Ariz. Rev. Stat. § 32-1471  (2006)

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Civil Liability - Volunteers

• Emergency statutes:

Provide immunity during declared emergencies explicitly or by converting VHPs into state employees

Provisions can be broad or redundant

Not applicable to egregious conduct

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• Emergency statute: A person or health care provider undertaking any activity required by this article, including reporting, participating in quarantine or isolation procedures, is immune from civil or criminal liability if the person or health care provider acted in good faith. Actions required by this article are presumed to be in good faith.

Ariz. Rev. Stat. § 36-790 (2006)

Civil Liability Protections - Arizona

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Civil Liability – Health Care Entities

• Immunity for health care entities:

Less immunity options than for VHPs

Some health care entities may qualify for sovereign immunity

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Civil Liability – Health Care Entities

• Health care entities that provide volunteers:

Unlikely to be liable for acts by its employees in other facilities or jurisdictions.

• Health care entities that accept volunteers:

May be liable for actions that take place under their supervision depending on the relationship between the VHP and the entity

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Major Topical Areas

• Legal Triage In Emergencies

• Licensure Reciprocity

• Civil Liability, Immunity, and Indemnification

• Workers’ Compensation

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Workers’ Compensation

• Key Questions:

Are VHPs employees for the purposes of workers’ compensation?

Who is the employer of VHPs?

When is a VHP acting within the scope of his or her employment?

When is a VHP “injured” during emergency responses?

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Workers’ Compensation

• Are VHPs employees for the purposes of workers’ compensation?

Absent a state law extending workers’ compensation to volunteers, unpaid individuals who respond to emergencies are not covered because they are not “employees”

Narrowly written laws that appear to cover VHPs may not apply if the (1) employer opts to not cover volunteers or (2) volunteer is not appropriately registered.

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Workers’ Compensation

• Who is the employer of volunteers?

The employer from the “home” state is not likely to be responsible for injuries to volunteers because they are acting outside the course of employment (unless the employer offers to provide coverage)

Temporary “host” employer may be the state or municipal government.

If not, the “host” institution (e.g., hospital) may be responsible.

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Workers’ Compensation

• When is a volunteer acting within the scope of his or her employment? – even if coverage exists, it only extends to acts within the scope of one’s employment

• When is a volunteer “injured” in the course of emergency responses? – Workers compensation only pertains to injuries that occur at work. Questions as to the timing of injuries may arise, especially among states that lack comprehensive occupational health provisions

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Conclusion

• For more information, please contact us at the Network for Public Health Law – Western Region Office

• 480-727-8576

• james.hodge.1@asu.edu

• http://www.networkforphl.org/

• Questions, comments, thoughts?

• Thank you!