Division of Legislative Services > Legislative Record > 2007
HJR 701/SJR 390: Joint Subcommittee Studying Liability Protections for Health Care Providers
September 27, 2007
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.
OF EMERGENCY DECLARATION PROCESS
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.
HEALTHCARE AND HOSPITAL ASSOCIATION
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:
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:
INSURANCE AND LIABILITY PROTECTIONS
CARE PROVIDER LIABILITY PROTECTIONS IN OTHER JURISDICTIONS
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.
Utilizing the legislative principles contained in the VHHA presentation as a guide, the members agreed to consider several legislative alternatives.
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.
The joint subcommittee's next meeting will be held on October 16, 2007, in Richmond.
Division of Legislative Services > Legislative Record > 2007