Commentary

Liability protection when practicing during a disaster: How the laws work

Current Psychiatry. 2021 July;20(7):28-32,42 | doi:10.12788/cp.0148

References

1. Altman RL, Santucci KA, Anderson MR, et al. American Academy of Pediatrics Committee on Medical Liability and Risk Management. Understanding liability risks and protections for pediatric providers during disasters. Pediatrics. 2019;143(3):e20183893. doi.org/10.1542/peds.2018-3892
2. Lambert K, Wertheimer M. American Professional Agency: Risk management in disaster response. Published September 2017. Accessed May 25, 2021. https://www.aacap.org/App_Themes/AACAP/Docs/resource_centers/disaster/resource_group/resources/orgs/RMDisasterResp.pdf
3. Federal Torts Claims Act, as amended. Codified at 28 USC. §1346 (1946).
4. Association of State and Territorial Health Officials (ASTHO). Liability, immunity, and workers’ compensation issue in public health emergencies. Published 2012. Accessed May 25, 2021. https://www.astho.org/Programs/Preparedness/Public-Health-Emergency-Law/Emergency-Authority-and-Immunity-Toolkit/Liability,-Immunity,-and-Workers%E2%80%99-Compensation-Issues-in-Public-Health-Emergencies-Issue-Brief/
5. Volunteer Protection Act of 1997. Pub. L. 105-19, 111 Stat. 221.
6. Pope TM, Palazzo MF. Legal briefing: crisis standards of care and legal protections during disasters and emergencies. J Clin Ethics. 2010;21(4):358-367.
7. Health Insurance Portability and Accountability Act of 1996. Pub. L. 104-191, 110 Stat. 1936. https://www.congress.gov/104/plaws/publ191/PLAW-104publ191.pdf
8. American Medical Association. Liability protections for health care professionals during COVID-19. Updated April 8, 2020. Accessed May 25, 2021. https://www.ama-assn.org/practice-management/sustainability/liability-protections-health-care-professionals-during-covid-19
9. Public Readiness and Emergency Preparedness Act of 2005. Pub. L. 109-148, 119 Stat. 2818. https://www.govinfo.gov/content/pkg/PLAW-109publ148/html/PLAW-109publ148.htm
10. Emergency Management Assistance Compact (EMAC). Accessed May 25, 2021. https://www.emacweb.org/
11. Hodge JG, Garcia AM, Anderson ED, et al. Emergency legal preparedness for hospitals and health care personnel. Disaster Med Public Health Prep. 2009;3(2 Supplement):S37-S44. doi: 10.1097/DMP.0b013e31819d977c

Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (HIPAA) of 1996,⁷ specifically Section 194, extends eligibility for FTCA liability protections to VHPs at qualifying free clinics, provided the clinic sponsors the VHPs by applying to the Health Resources and Services Administration.⁸ It does not require that an emergency be declared before immunity is conferred.

Public Readiness and Emergency Preparedness Act

The Public Readiness and Emergency Preparedness (PREP) Act of 2005⁹ authorizes the US Department of Health and Human Services (HHS) Secretary to issue a declaration that provides immunity to VHPs from tort liability for claims of loss caused by the use of authorized countermeasures (eg, vaccines) against diseases or other threats of public health emergencies.⁴A separate emergency determination under Public Health Service Act Section 319 or another statute is not required for PREP Act immunities to take effect.⁴ The PREP Act covers individual persons and entities involved in the manufacture, testing, distribution, administration, and use of covered countermeasures.⁴

PREP Act immunity is not absolute and does not protect against claims of willful misconduct, violation of the Americans with Disabilities Act (ADA), or other civil rights violations.⁴ Liability protection under the PREP Act is limited to a specific emergency and includes only the countermeasures and other conditions listed in the PREP Act declaration by the HHS Secretary.⁴

State laws and regulations

States have a variety of standing liability protections that could apply to VHPs who provide care in an emergency. Some states have crafted executive orders to be put into effect during a disaster. Most of these executive orders, which can include extending liability protections, are similar to what other states have done by adopting model acts such as Model State Emergency Health Powers Act.⁶ These orders are not actually laws; they only become effective when the governor signs them at the time of the disaster. These orders also are time-limited and must be reissued in subsequent disasters.

State tort claims acts and state claims acts

Similar to the federal government, some states have waived sovereign immunity in certain circumstances through state tort claims or state claims acts.

Continue to: State tort claims act

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