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

August 30, 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 first meeting on August 30, 2007, with Delegate Phillip A. Hamilton as chair and Senator Stephen D. Newman as vice-chair.

Overview
Staff presented an overview of the study's directives. HJR701 and SJR 390 note that health care providers who respond to a disaster or declared emergency often do not have access to the same level of resources that would be available under normal circumstances. During an emergency, health care providers must make decisions as to what level of care can be rendered based upon available resources and may also be required to render aid that is outside their scope of practice. The members will examine what other states provide and the benefits to Virginia’s citizens and health care providers of providing enhanced liability protection in the event of a state or local emergency.

Presentations

Health Care Provider Liability in Disasters
Steven D. Gravely, J.D., M.H.A., a member of the joint subcommittee and an attorney with Troutman Sanders, made a presentation by teleconference on health care provider liability protections in disasters and the protections currently available under Virginia law. Mr. Gravely was also appointed as a special counsel to the Attorney General's office and assigned to work with the Virginia Department of Health on health care provider liability. Erin S. Whaley, J.D., M.A., who was present at the meeting, assisted in the presentation.

Mr. Gravely described a health care system that is under significant stress, where staff shortages exist and the industry has migrated to a "just in time" model of care, and explained that a disaster or emergency would cause substantial disruptions to the health care system. During a disaster, health care providers are concerned regarding three areas that are associated with liability risks:

• Failure to prepare.
• Failure to respond.
• “Altered" standards of care.

Two examples discussed were the failure to use infection control measures in response to the SARS outbreak in Canada and the failure to evacuate in a timely manner in response to Hurricane Katrina in Louisiana. There were multiple lawsuits against health care providers and the government as a result of these failures.

Mr. Gravely explained that there is no precise definition for "altered" standards of care, but the term has become shorthand for describing the allocation of the scarce, critical resources needed to treat victims during a disaster. He further noted that making such an allocation is difficult to do in a legal vacuum. The current statutory definition of standard of care makes no provision for the circumstances under which the care was rendered, although he noted that Virginia's Model Jury Instructions do include such a provision. He noted that there is no Virginia case law dealing with "altered" standards of care and jury instructions are not mandatory.

Current Virginia law providing liability protections for health care providers and the three primary sources of liability protection for providers were reviewed. Mr. Gravely stated that in recent years Virginia has focused attention on providing protections for individual health care providers, specifically volunteers.

The first law of note is Virginia’s Good Samaritan statute located at § 8.01-225. The Good Samaritan statute only applies to individuals who provide emergency care without compensation and only if care is provided at the scene of an accident or emergency. The law does not apply to institutional health care providers or provide liability protections for individual providers who render such care as part of their job for compensation or who provide care at hospitals or other non-emergency settings. The law does not protect providers who render preventative care during an emergency.

The second law provides volunteer immunity and is available under the Federal Volunteer Protection Act, located at 42 U.S.C. § 14501 et seq., or the Virginia State Government Volunteers Act, located at § 2.2-3600 et seq. Mr. Gravely stated that both of these Acts only apply to volunteer health care providers and not institutional health care providers.

The Commonwealth of Virginia Emergency Services and Disaster Law, § 44-146.13 et seq., was also reviewed. Mr. Gravely explained that the law gives the Governor the power to declare a state of emergency, and that consistent with such a declaration, he may also allocate scarce medical resources during the emergency. The law expressly provides immunity in certain situations, described as Section A Immunity and Section C Immunity. Section A Immunity provides liability protections for certain entities engaged in emergency services activities, however Mr. Gravely stated that it was unclear whether the rendition of care in a hospital setting during an emergency would qualify for this protection. Section C Immunity provides liability protections for providers who gratuitously render aid during a disaster. Section A and Section C Immunity only applies after a state of emergency is declared and provides no pre-declaration protection. Mr. Gravely expressed his belief that basing liability protection on an emergency declaration that has yet to be drafted leaves significant uncertainty as to the scope of protection. He also offered the following three conclusions:

• Health care providers have a reasonable basis for concern about their liability for care rendered during a disaster.
• Health care providers are a vital component in an effective response framework.
• Current Virginia law does not clearly provide liability protections for health care providers who render care during a disaster.

Virginia Department of Health’s Role in Emergency Preparedness and Response
Dr. Lisa Kaplowitz, M.D., M.S.H.A., Deputy Commissioner for Emergency Preparedness and Response, made a presentation on behalf of the Virginia Department of Health (VDH) explaining its role in emergency preparedness and response. The presentation focused on five issues:

• Virginia's public health emergency response.
• Hospital/health care system emergency response.
• Public health and health system partnership.
• Role of health care providers.
• Liability protections for health care providers in emergencies.

In addressing these issues, Dr. Kaplowitz noted that the VDH's Emergency Preparedness and Response Programs (EPR) were established in 2002 and employs an all-hazards approach, preparing for both natural disasters and terrorist related emergencies. The VDH, with funding from the Centers for Disease Control and Prevention and the United States Department of Health and Human Services, has implemented the following:

• Enhanced local capacity to respond to emergencies through the hiring of a planner and epidemiologist for each of Virginia's 35 District Health Departments.
• Five regional teams to coordinate planning and response.
• Upgraded information and communications technologies and systems and improved public emergency information.

There was discussion on the initial response to an emergency at the local level and the role of the Governor in declaring an emergency. The members directed staff to research these procedures and provide them with information at the next meeting.

Dr. Kaplowitz explained that, under the coordination of the Virginia Emergency Operations Center (VEOC), the VDH is responsible for Emergency Support Function 8: The Coordination of Public Health/Health and Medical Response. The VDH's Emergency Coordination Center operates to fulfill this function on the state and local level through coordinating the Public Health response, coordinating hospital and long-term care response, and communicating with health care provider systems and linking them to the VEOC.

There was discussion on the importance of partnerships with private and public health care providers. Dr. Kaplowitz stressed that the mission of the VDH is disease control and prevention, not the provision of health care. As most health care is provided by the private sector, the VDH has partnered with the Virginia Hospital and Healthcare Association to manage and coordinate the use of federal funds for health system preparedness. The VDH collaborates with the health care community, hospitals, and individual physicians on issues of preparedness; helps to coordinate volunteer health care providers, such as those in Medical Reserve Corps; and is developing a statewide system for registering and identifying volunteers. Dr. Kaplowitz noted that in these partnerships, the potential for liability is a primary concern for health care providers, because during an emergency, they are operating outside of their normal practice environment.

Emphasizing the many challenges that health care providers would face in a disaster, Dr. Kaplowitz concluded by sharing VDH planning for a pandemic influenza outbreak, illustrating the agency's role in emergency preparedness.

Medical Society of Virginia
Gerald C. Canaan, II, an attorney with Hancock, Daniel, Johnson & Nagle, P.C., spoke on behalf of the Medical Society of Virginia (MSV). He explained that the MSV was more focused on health care provider liability from the standpoint of individual physicians, and not that of institutional health care providers such as hospitals. The MSV does not perceive that there is a large problem with the liability protections already afforded individual physicians under current Virginia law.

The primary concern of the MSV regarding health care provider liability protections is the issue of compensation. Mr. Canaan noted that current Virginia law, such as the Good Samaritan statute or the Emergency Services and Disaster Law, provides for liability protections only when the physician's services are not rendered for compensation. He stressed that physicians who respond to disasters and emergencies are typically not looking for compensation, however, they would like to be able to recover their expenses without losing their liability protections. Physicians who accept reimbursement from charitable organizations or other entities for expenses such as travel costs or the cost of supplies may no longer be able to invoke liability protections if such reimbursement is considered compensation.

Mr. Canaan gave examples of small "tweaks" that could be made to clarify current Virginia law, including alleviating a potential discrepancy between the Good Samaritan statute, which uses the term "without compensation," and the Emergency Services and Disaster Law, which uses the term "gratuitously," He also discussed an omission in § 8.01-225.01 that provides liability protections for health care providers that abandon a patient in order to respond to a man-made disaster, noting that the protections of this statute do not apply to physicians responding to a natural disaster.

Work Plan and Next Meetings
Suggested topics for future discussion include the following:

• How the federal government handles health care provider liability in emergency situations, such as accidents on military bases involving multiple casualties.
• Potential criminalization of physicians' actions in response to emergencies as illustrated by the case of Dr. Anna Pou in Louisiana.
• Emergency declaration process on the local, state, and federal levels and comparison of the different types such as hurricanes and natural disasters, pandemics, etc.
• Liability protections available prior to the declaration of an emergency, focusing on issues such as negligent planning.
• What other states are doing to protect health care providers who render aid during emergencies.
  Recommendations for possible legislation.

The next meeting of the joint subcommittee is planned for the last week of September and information will be posted available online on the DLS sponsored website and the General Assembly Calendar.

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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