HJR 701/SJR 390: Joint Subcommittee Studying Liability Protections for Health Care Providers

September 27, 2007

Overview

The Joint Subcommittee to Study the Feasibility of Offering Liability Protections to Health Care Providers Rendering Aid During a State or Local Emergency held its second meeting on September 27, 2007, with Delegate Phillip A. Hamilton as chair.

Staff addressed the issue of liability protections available on military bases and explained that service members are precluded from bringing suits for injuries sustained while on active duty under the provisions of a United States Supreme Court case, Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Information was given concerning the prosecution of health care providers for decisions made during emergencies or disasters. Concern regarding the criminalization of health care decisions has arisen in the aftermath of Hurricane Katrina where Dr. Anna Pou was accused of euthanizing patients at New Orleans’ Memorial Medical Center, although a grand jury decided not to pursue criminal charges. The AMA has issued policies opposing the criminalization of medical judgment and the criminalization of health care decision making. It has also developed a Model Act to Prohibit the Criminalization of Health Care Decision Making; however, to date no states have adopted the model.

Presentations

STATE OF EMERGENCY DECLARATION PROCESS
Michael Cline, State Coordinator of Emergency Management for the Virginia Department of Emergency Management (VDEM), explained that the Governor is the Director of Emergency Management and has the statutory authority to declare a state of emergency. The typical declaration process begins with a verbal recommendation that a state of emergency be declared made by the VDEM and based on the input of the Virginia Emergency Response Team, which includes state agencies as well as representatives of the public and private sectors. In response to the oral recommendation, the Governor issues a verbal order. After input from state agencies, the VDEM and occasionally the Virginia Department of Health (VDH), issues a written order. The order is reviewed by the Attorney General's office, other agencies that may be affected by the order, as well as the Secretary of Public Safety before being issued by the Governor.

There is an exception when a disaster is expected, such as the forecast of a severe winter storm. The Governor would not declare a state of emergency and only a written declaration would be issued. Mr. Cline further explained that some state agencies, such as the Virginia Department of Transportation, can respond to a disaster within their existing authority without a state declaration of emergency. He noted that the Virginia National Guard, however, can only be activated in the event of a state declaration of emergency. The declaration of a state of emergency becomes effective upon the Governor's verbal order and there is little time lapse between the issuance of the verbal order and the subsequent written order. The longest such lapse that Mr. Cline could recall was approximately 45 minutes.

VIRGINIA HEALTHCARE AND HOSPITAL ASSOCIATION
Katharine M. Webb, Senior Vice-President of the Virginia Hospital and Healthcare Association (VHHA), made a presentation on the topic of providing care with limited resources. The VHHA began a public/private partnership in 2001, working with a group of hospital leaders. In 2006, the group expanded to include various hospital systems, other interested organizations, and representatives from the VDH and the General Assembly. The issues related to providing care in the face of normally adequate resources that are depleted by extraordinary demand during a disaster were addressed. The group focused on the ability of hospitals to continue to provide care during extraordinary events when faced with limited resources.

The work group developed a Critical Resource Shortage Planning Guide, which addresses the allocation of scarce resources during an emergency situation and establishes a process for hospitals to follow in planning for the provision of care in the face of scarce resources. The Guide rests on four assumptions:

• Hospitals will be responsible for making decisions regarding resource shortages at the institution and health system level.
• Hospitals will need to allocate resources during a shortage in a way that does the greatest good for the greatest number.
• Resource shortage plans should fall within the hospital's existing incident command system.
• The Guide only applies during emergencies and disasters.

Ms. Webb stated that legislation is still necessary in order to protect health care providers, because of the unusual nature of care rendered during a disaster to that provided under normal circumstances. She gave five legislative principles needed for comprehensive protection of health care providers:

• An all-hazards approach applied to both natural and man-made disasters.
• Application to all health care providers, including hospitals.
• Protections not limited to just volunteers.
• Application both pre- and post-declaration of a state of emergency.
• Inclusion of all care provided during the emergency or disaster.

LIABILITY INSURANCE AND LIABILITY PROTECTIONS
J. Christopher LaGow, J.D., representing the Property Casualty Insurers Association of America, briefly spoke on the relation of liability protections and insurance. He expressed his support for liability protections, such as the Good Samaritan statute, as they further the public policy of encouraging the provision of emergency care. However, Mr. LaGow indicated that there is a lack of any quality studies regarding the impact of such protections on paid claims or insurance premiums.

HEALTH CARE PROVIDER LIABILITY PROTECTIONS IN OTHER JURISDICTIONS
Staff reported that almost every state has its own version of a Good Samaritan statute as well as civil defense/emergency services laws. Other states' Good Samaritan statutes are similar to Virginia's and provide that care must be rendered without compensation at the scene of an accident or emergency before the liability protections may be invoked. California, Indiana, Louisiana, Maryland, Michigan, and Minnesota have civil defense/emergency services laws that expressly afford liability protections for health care providers. All except one of these statutes require that a declared state of emergency exist before they will apply. Indiana also requires that a declaration of emergency exist, but provides that the statute's liability protections cover the provision of health care that occurred prior to the declaration.

Public Comment

Steve Pearson, representing the Virginia Trial Lawyers Association, expressed his belief that the issue of health care provider liability being addressed by the subcommittee already fits into the current legal framework in Virginia involving the standard of care and that current law affords sufficient liability protections to health care providers to ensure an effective emergency response. He also emphasized his opposition to broad grants of immunity, including immunity that would apply during time periods prior to the declaration of a state of emergency. In response to questioning from the members, Mr. Pearson acknowledged differences between the statutory standard of care and Model Jury Instructions' standard of care and discussed the claims brought against health care providers for failing to plan for emergencies, such as some of the claims filed in the wake of Hurricane Katrina or the SARS outbreak in Canada.

Beverly Soble, representing the Virginia Health Care Association, expressed her preference that the joint subcommittee recommends extending liability protections to all health care providers, including nursing homes and assisted living facilities. She stated that such facilities would likely assist with any surge in the provision of health care associated with an emergency.

Scott Johnson, representing the Medical Society of Virginia, stated his preference that the protections already afforded to health care providers in Va. Code § 8.01-225.01 be extended to include natural disasters, in addition to the man-made disasters that are already covered, and that liability protections cover both pre- and post-declaration of emergency time periods. He supports several changes to Virginia's Good Samaritan statute, including permitting providers rendering services under the statute to be reimbursed for actual expenses and expanding the statute's scope so that protections are not limited to care provided at the scene of an emergency.

Dr. Lisa Kaplowitz, Deputy Commissioner for Emergency Preparedness and Response for the VDH, stated that physicians who would be willing to respond to a disaster are worried about the risk that they may be subjecting themselves to by doing so. Dr. Kaplowitz said that such concerns could be ameliorated if the physicians were aware that they were afforded greater liability protections. She expressed her skepticism that greater physician education concerning the currently available liability protections would be sufficient.

Recommendations

Utilizing the legislative principles contained in the VHHA presentation as a guide, the members agreed to consider several legislative alternatives.

• Any liability protections should extend to all health care providers, and not be limited to institutional providers, such as hospitals.
• Any liability protections should cover both natural and man-made disasters and, if possible, the current definitions of these types of disasters contained in the Virginia Code should be condensed into one single definition of "disaster."
• An amendment to the definition of natural disaster be made to clarify that disease outbreaks would be covered.
• Volunteer health care providers would be allowed to recover their actual expenses incurred during the rendition of care.
• Protections should apply both before and after the declaration of a state of emergency.
• Liability protections would apply to all care provided during a disaster or emergency with no dual standard of care applied during an emergency or disaster.

The members approved a legislative draft prepared by staff which amended the exceptions to the definition of a patient found in Va. Code § 8.01-581.1 to add a reference to Va. Code § 44-146.23, the liability provision of the Emergency Services and Disaster Law, in addition to the already existing reference to the Good Samaritan statute.

It was also decided to attempt to broaden the Good Samaritan statute to expand its application from care rendered at the scene of the accident or emergency to care rendered in response to an accident or emergency.

Next Meeting

The joint subcommittee's next meeting will be held on October 16, 2007, in Richmond.

Chairman:
The Hon. Phillip A. Hamilton

For information, contact:
David Cotter, Greg O'Halloran, DLS Staff

Website:
http://dls.state.va.us/liability.htm

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