Disasters—both natural and human-caused—can strike at any time, causing severe trauma for those impacted. Disasters may create circumstances where the need for mental health resources could exceed capacity, and hospitals and clinics would be unable to meet the needs of the affected communities. As psychiatric clinicians, we may want to provide our services in such situations; however, we are still at risk for civil, criminal, or constitutional liability claims against us if we fail to meet our legal obligations related to psychiatric practice. Ideally, whether we live and work in an area affected by a disaster or volunteer from other states, we should be able to care for patients without fear of facing unreasonable liability risks. Although an exhaustive list of all relevant federal and state laws and regulations is beyond the scope of this article, here I discuss some of the federal and state laws and regulations that could provide protection from these risks, and some limitations of liability protection.
A familiar list of liability concerns
From a liability perspective, what should we be aware of when practicing during disasters? The same liability concerns we have during our day-to-day practice also exist during disasters, especially when there are suboptimal or adverse outcomes. Negligence, practicing without a proper state medical license, and abandonment are among the liability concerns that we could face when practicing during a disaster (Box1,2).
Box
Liability concerns you may face when practicing during a disaster
During disasters, changes in the usual standard of practice may be necessary to save as many lives as possible, and when resources are scarce, the focus of mental health services could shift from individualized patient care to those who are most in need. Examples of potential liability concerns clinicians may face in such situations include:
Negligence. Clinicians may have to provide emergent care for patients that may result in an adverse outcome. Examples include applying a tourniquet to a patient’s badly injured limb without their consent, and then that patient loses their limb, or administering the COVID-19 vaccine to a patient because of significant clinician shortages, and then that patient develops complications. These scenarios could possibly give rise to ordinary negligence claims of practicing outside the usual scope of practice, especially for a clinician who does not have liability protections.
Practicing without the proper state medical license. When out-of-state clinicians come to a facility that needs emergency assistance, they can face liability concerns for practicing without a properly recognized state medical license.1 Because care is deemed to have been provided where the patient was physically present when services were provided, liability can occur when providing services to patients in a state where the psychiatrist does not have a medical license. An example of this would be a psychiatrist in South Carolina who provides telehealth services to patients in a Florida community ravaged by a hurricane when the psychiatrist does not have a Florida medical license.
Abandonment. When we take a confirmatory step to provide care to an individual, it may create a clinician-patient relationship and a duty on behalf of the clinician within the applicable standard of care.2 With disasters, the customary expectations and parameters associated with clinician-patient relationships can change. We may have to cease treating some patients so that we can focus our time or resources elsewhere, which could open up liability concerns regarding claims of abandonment.1 At times, we may refuse to treat patients outright, creating conflicts with the Emergency Medical Treatment & Active Labor Act (EMTALA) and its state counterparts.
Liability protections
There are no comprehensive national liability protections for all practitioners during disasters.1 Limited immunity is often provided through a patchwork of federal and state laws and regulations, which can be complex and are often modified. This immunity depends on several factors, such as applicable regulations, the type of services that are provided, and whether the clinicians are volunteering their services (ie, they are not being paid for providing services).2 There is usually no immunity due to willful or wanton acts, gross negligence, providing care while intoxicated, or criminal acts.2
Federal laws and regulations
Most of the federal laws that provide liability protections are activated once a disaster is declared. However, some laws provide liability protections without requiring such declarations. Additional federal laws and regulations that provide additional liability protections, especially to volunteers, can be enacted after disasters occur.
Federal Tort Claims Act
The Federal Tort Claims Act (FTCA)3 protects federal government employees from tort liability by substituting the federal government as the defendant in certain types of suits brought against the federal government. These suits may involve injury, loss of personal property, personal injury, or death by the negligent or wrongful act or omission of any federal government employees while acting in the scope of their office or employment.3,4 It does not require that an emergency be declared before immunity is conferred. FTCA covers all federal government employees, including volunteers.4 In the context of an emergency response, volunteers can assert the liability protections afforded to federal employees if they are designated as unpaid employees of the federal government.4 Federal employees are immune from suit under state tort law.4
Volunteer Protection Act
The Volunteer Protection Act (VPA) of 19975 provides liability protections to uncompensated volunteer health professionals (VHPs) who perform services for nonprofit organizations or government entities against claims of ordinary negligence committed within the scope of their volunteer responsibilities.4 It does not require that an emergency be declared before immunity is conferred. Although VHPs are not liable for economic damages caused by providing medical care within the scope of their volunteer responsibilities, this exemption does not extend to non-economic damages, such as losses for suffering and mental anguish.5 VPA does not protect VHPs working in businesses (including for-profit hospitals) and organizational entities of any type (including nonprofit or governmental organizations) that use VHPs.4
VPA only protects VHPs practicing with a license as required by law in the state where the harm occurred, unless state authorities allow for licensure exceptions. VPA overrides state laws that are inconsistent with VPA, unless those state laws provide greater liability protection for VHPs.4 However, VPA protections are limited. VPA protects only volunteers, not clinicians working in their regular nonemergency roles and capacities.6 A nonprofit or government agent can still bring civil claims against VHPs.6 VPA does not override certain state laws that put conditions on volunteers, such as risk management requirements, vicarious liability, and a financially secure form of recovery for intended victims.6
Continue to: Health Insurance Portability and Accountability Act