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

Limitations. Many Good Samaritan statutes apply only to volunteers, and not all states have statutes that allow clinicians to be designated as such,⁶ so receiving compensation would take a clinician outside the scope of the statute. Further, most states only shield action taken at the scene of an accident, and immunity would not extend to a hospital emergency department, or in the aftermath of an emergency as normal conditions slowly return.⁶ Therefore, Good Samaritan liability protection would apply to the common scenario of assisting at the scene of a car crash, but not necessarily to treating individuals in the emergency department after a hurricane or during a pandemic.⁶ State laws vary considerably on what constitutes “good faith” and “without compensation,” which would determine whether protection applies for a clinician who is otherwise salaried in a regular job.¹

Mutual aid agreements

Mutual aid agreements are mechanisms through which jurisdictions can aid other jurisdictions during emergencies.⁴ These agreements also include provisions for reimbursing expenses, providing liability protections to governmental employees and volunteers who provide aid, and awarding compensation for injuries to personnel deployed under the agreement.⁴ These protections are not automatic and are limited in their applicability.

The Emergency Management Assistance Compact (EMAC), the most widely adopted mutual aid agreement in the United States, has been adopted by all 50 states, the District of Columbia, and some territories.¹⁰ It only becomes effective once an emergency has been declared. EMAC provides immunity to officers from the state that is rendering aid to the state requesting aid, in which officers are considered agents of the requesting state for tort liability and immunity purposes.⁸ These individuals, who must be properly dispatched in response to an EMAC request, are not to be held liable for acts or omissions rendered in good faith; however, EMAC does not provide liability protection for actions constituting willful misconduct, gross negligence, or recklessness.⁶ EMAC also provides reciprocity for individuals who are properly dispatched in response to an EMAC request who hold medical licenses to practice medicine in the receiving state, subject to any limitations imposed by the receiving state.⁴ Clinicians can familiarize themselves with a state’s medical licensing requirements by reviewing that state’s medical board website. For EMAC protections to apply, a state must make a request to another/other state(s) through EMAC, and such requests must be formally accepted by the rendering state.⁸ EMAC does not require participating states to actually provide aid.¹⁰

Non-volunteer health care clinicians

Non-volunteer (salaried or paid) health care clinicians are more likely to bear the brunt of providing care during a disaster, especially in the early stages before VHPs arrive; however, most legislation does not address the associated disproportionate liability risk burden of non-volunteer health care clinicians.^1,11 As opposed to VHPs and government employees, non-volunteer health care clinicians performing their regular job duties during a disaster are generally not provided immunity from negligence by most legislation.^1,6 One exception is the PREP Act, which provides immunity for all clinicians from claims that may arise from dispensing a specific counter­measure during a declared public health emergency.^1,9 Some states have enacted the Model State Emergency Health Powers Act, which may offer immunity from negligence if the non-volunteer clinician is rendering care under contract with or at the request of a state¹; however, non-volunteer clinicians who practice from their office or a local hospital will not receive protection through these laws.¹ Good Samaritan laws may not apply unless care is provided at a scene of an emergency.

A few states have attempted to narrow this legislative gap by enacting laws that provide immunity more broadly for clinicians, regardless of their volunteer or compensation status.¹ Elements of these states’ laws include acting in response to a declared emergency or disaster in which there is a recognized depletion of resources attributable to the disaster, at express or implied request of the state government, and consistent with emergency plans.¹

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