Liability reforms needed to provide timely care to disaster victims

Hurricane Katrina, which the Federal Emergency Management Agency (FEMA) has described as the “single most catastrophic natural disaster in U.S. history,” hit the Gulf Coast on August 29, 2005, causing severe damage to Louisiana, Mississippi, and surrounding areas. A total of 1,833 people in five states lost their lives as a result of the hurricane and subsequent floods; approximately 1,600 of those deaths occurred in Louisiana. More than 1 million people in the Gulf region were displaced by the storm.¹ Former President George W. Bush declared a state of major disaster in Alabama, Louisiana, Mississippi, and Florida.² Kathleen Blanco, Governor of Louisiana at the time, declared a public health emergency on September 2, 2005.³ The Secretary of the U.S. Department of Health and Human Services (HHS), Michael O. Leavitt, declared a state of emergency in Mississippi, Florida, and Alabama initially and later extended emergency status to nine additional states, including those that received the displaced victims.⁴

In the chaos that ensued in flood-ravaged areas, hospitals became shelters for patients, hospital workers and their families, visitors, and other individuals seeking refuge. Physicians and other health care professionals found themselves overseeing triage and evacuation efforts in addition to delivering medical care to sick patients with limited staff and resources. Power failure in hospitals in the affected areas added to the challenges. Health care providers worked tirelessly in 100-degree heat without air conditioning or even light for days while evacuation efforts slowly progressed.^5-6

As federal, state, and county officials worked to address the public health needs of disaster-stricken areas, they relied extensively on volunteer health professionals (VHPs) to provide health care services. More than 33,000 VHPs responded to the call for assistance through various state-based or private emergency response programs, while others arrived on-site spontaneously.⁷ However, legal issues, such as licensing and credentialing, civil liability, and reparations for harm to volunteers, delayed or prevented these volunteers from providing care. For example, left with no opportunity to provide medical care, a Louisiana physician and his staff mopped the floors at the New Orleans airport while sick people died around them. FEMA prohibited the team from administering care due to liability concerns.⁸

In a poignant letter to the American College of Surgeons (ACS), Melanie Korndorffer, MD, FACS, and James Korndorffer, MD, FACS, who were in Mississippi when Katrina struck, described their efforts to serve as volunteers in a hospital in Gulfport. (This letter, which is unavailable to the general public, was provided to the College as testimony for the Connecticut state legislature Joint Committee on Public Safety and Security hearing.) Dr. James Korndorffer is a practicing general surgeon at Tulane University in New Orleans; Dr. Melanie Korndorffer had until two years prior to Katrina practiced in Montgomery, AL. In the early stages of disaster relief, both physicians attempted to provide help in New Orleans, but due to evacuations, they were directed to the only functioning hospital located in Gulfport, on the coast of Mississippi. They arrived at the facility with proper identification; however, despite extensive efforts, the hospital administrators were unable to obtain approval for the Korndorffers to relieve the sole surgeon who had been working in the hospital for 96 hours without a break.

The Korndorffers shared their story with the College in an effort to convey to the physician community the necessity of devising a better system to facilitate volunteer health professionals in times of emergency or disaster. Specifically, they requested support for the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA).

In the last 60 years, an average of 36 disasters and six states of emergency have been declared annually in the U.S.⁹ Physicians and other medical professionals have consistently met the health care challenges associated with these events by volunteering their services. For example, within hours of the 9/11 attacks, a hotline set up to register physician volunteers in New York received more than 8,000 offers of help from across the nation. A group of 110 physicians, nurses, and paramedics attending an emergency and critical care conference across from the World Trade Center left the conference center en masse and set up a field hospital eight blocks from the fallen buildings.¹⁰

Unfortunately, inconsistent federal and state laws providing liability protections for volunteers prevent trained health care professionals from putting their skills to use in these times of emergency and disaster.¹¹ Glenn Cambre, JD—the attorney supervisor for the Louisiana Department of Health and Hospitals during the period following Hurricane Katrina—stated the following with regard to disaster relief efforts after Hurricane Katrina: “The main thing we worked on was allowing out-of-state medical professionals who wanted to volunteer and come help, to waive the requirement of having them licensed in our state if they could show they were validly licensed in the state that they were coming from…. We had to keep renewing that executive order because we had so much need for help.”¹² The time and resources expended on these efforts could be used more effectively elsewhere during such disasters. The obstacles that prevented volunteer health care professionals from assisting in the aftermath of Hurricane Katrina were also reported after the 9/11 attacks, Hurricane Rita in 2005, and Hurricanes Gustav and Ike in 2008. In a Council of State Governments publication, one of the five major lessons learned in the aftermath of Katrina was the necessity of defining liability and workers compensation coverage for volunteer health professionals.¹²

Current protections

Congress passed the Volunteer Protection Act (VPA), P.L. 105-19, in 1997. The VPA provides immunity to volunteers serving in both emergency and nonemergency situations, as long as they are licensed in the state in which harm occurred and no evidence of gross negligence emerges.¹³ However, an organization may be sued for the actions of its volunteers or itself sue its volunteers. This law falls short of specifically protecting health care professionals, such as physicians, nurses, and emergency medical technicians (EMTs). It also offers no protection to volunteers serving in any state other than the one in which they are licensed. Therefore, each individual state is free to determine the protections it will offer to out-of-state volunteers in times of crisis.

All 50 states and the District of Columbia have their own laws protecting VHPs, but because they are developed and implemented at the state level, the laws lack uniformity. For example, Mississippi protects VHPs who are licensed in the state but requires that out-of-state volunteers receive special volunteer licenses to receive those protections. Alabama protects VHPs licensed in any state as long as they are working with an “established free medical clinic” in Alabama during a disaster or emergency. Kansas law offers regional medical emergency response team members the same liability protections as state employees.¹⁴ Some states grant liability protections to VHPs during declared public health emergencies, and governors may declare volunteers to be state employees for liability purposes during public health emergencies.¹⁴

States also have Good Samaritan laws that protect volunteers who act in good faith, without expectation of compensation, but those laws also lack uniformity. Some apply only to care provided to “accident” victims, whereas others apply to patients who receive care due to an “emergency.” The definition of “emergency” varies from state to state, as do the exact clauses and protections of each of these volunteer protection laws. A survey of state laws relating to VHPs and public health emergencies found that approximately 40 percent of states either lack statutes that provide immunity to volunteers during declared emergencies or have ambiguous statutes that require clarification.¹⁵ The lack of uniformity often causes confusion and uncertainty during emergencies and disasters when timely volunteer services are most needed.

UEVHPA initiatives

The UEVHPA is model legislation adopted by the Uniform Law Commission in 2006 in the aftermath of the Gulf Coast hurricane disasters.¹⁶ Laws that follow this model allow health care professionals credentialed in any state to volunteer in a state that is experiencing a declared disaster. Health professionals may register to provide volunteer services either before or during an emergency in a state that has adopted the UEVHPA. Volunteers may register with federal programs, such as the Emergency System for Advance Registration of Volunteer Health Professionals (ESAR-VHP), local Medical Reserves Corps (MRC), or with private relief organizations, which confirm appropriate licensure. Volunteers are limited to the scope of practice for those health care professionals licensed by the state in which the disaster occurs and the scope-of-practice limits of the state in which they are licensed. The legislation obviates the need for time-consuming license-verification processes during disasters, when the infrastructure of the affected state may be unable to support registration and temporary licensing, and timely services can mean the difference between life and death. Civil liability protections and worker compensation also are offered. States may choose between two options for civil liability protections, both of which offer the same patient protections against willful misconduct and gross negligence. Alternative “A” offers protections for vicarious liability (that is, an organization is protected from liability for the actions of its volunteers), whereas alternative “B” does not. Alternative “B” also caps the compensation a volunteer may receive at $500 per year.

Kentucky became the first state to adopt the UEVHPA in 2007, followed by Colorado and Tennessee.^17,18 In 2007, the College’s Board of Governors directed ACS Division of Advocacy and Health Policy State Affairs staff to advocate for passage of the UEVHPA in all 50 states and the District of Columbia, and in 2008, the Board of Regents adopted a formal statement in support of the model legislation.¹⁹ The Committee on Trauma (COT) has also endorsed the legislation. Since then, the ACS has been lobbying for passage of the UEVHPA in state legislatures, and Fellows have provided testimony in support of the model bill.²⁰ Thus far, 14 states, one territory, and the District of Columbia have passed the legislation (see figure). Most recently, the model bill was introduced in the Pennsylvania State Senate (S.B. 1235/H.B. 512/S.B. 35).²¹

Good Samaritan Health Professionals Act

Efforts are under way at the federal level to secure liability protections for professional health care volunteers who provide services in a declared emergency. The Good Samaritan Health Professionals Act, H.R. 3586, was introduced by Reps. Cliff Stearns (R-FL) and Jim Matheson (D-UT) in 2011 but died in committee.²² The language in this bill was subsequently included as an amendment to H.R. 5 in the 112th Congress, which passed in the House; however, because it was coupled with a repeal of the Independent Payment Advisory Board and a $250,000 cap on noneconomic damages, H.R. 5 died in the Senate.²³ A total of 224 Republicans and 27 Democrats voted in favor of this amendment in the House.²⁴

Reps. Marsha Blackburn (R-TN) and Matheson reintroduced the bill as H.R. 1733 in 2013 along with 16 cosponsors. H.R. 1733 has been referred to the House Energy and Commerce Subcommittee on Health and the House Judiciary Subcommittee on The Constitution and Civil Justice.²⁵ The Good Samaritan Act would afford volunteer health professionals the same level of civil immunity provided to all volunteers under the federal VPA. More specifically, H.R. 1733 would provide licensed health care professionals with civil immunity from federal and state liability laws when they serve as volunteers during declared emergencies. To be covered under the legislation, VHPs must be “licensed, certified, or authorized” in one or more state(s).²⁵

Importantly, the legislation closes the gap in the VPA by allowing professional health care volunteers who are licensed in one or more states to cross into the state that is experiencing a declared emergency. This law also preempts any state statutes that are inconsistent with the Act, unless the state law provides “greater protection from liability.”²⁵ Therefore, volunteers crossing state borders can be assured that they will be protected from liability at least to the extent possible under this law.

The patient protections provided in the VPA remain in place. Reckless misconduct or gross negligence is prohibited, and professionals are not protected if they are providing care while under the influence of alcohol or another intoxicating drug. The act’s protections extend to physical, nonphysical, economic, and noneconomic harm. Plaintiffs in civil lawsuits have the burden of proof to establish that the limitations on liability do not apply.²⁵

This legislation, if enacted, will allow rapid mobilization of health care volunteers to disaster areas, where the professionals can provide care to victims without fear of frivolous lawsuits. States would no longer have to wait for state registries to come back online to allow health professionals to care for patients in need. Help would no longer be turned away due to a lack of in-state credentials. This provision is especially important for states that have yet to adopt the UEVHPA. The ACS sent a letter of support for this legislation to Representatives Blackburn and Matheson, and efforts to have companion legislation introduced in the Senate are under way.²⁶ The ACS Division of Advocacy and Health Policy staff will continue to lead efforts to garner support for this legislation.

You can help

Volunteer health professionals are a key component of emergency and disaster response. Currently, lack of uniformity for licensure recognition and protection from civil liability remain major stumbling blocks to appropriate and timely involvement of physicians, nurses, EMTs, and other health professionals in times of disaster. The UEVHPA model legislation addresses those issues at the state level, and the Good Samaritan Act provides liability protection to VHPs at the federal level. Had the laws been in place before Hurricane Katrina struck the Gulf Coast, surgeons such as Drs. Melanie and James Korndorffer and countless other volunteer medical professionals could have served the victims of the disaster and, undoubtedly, saved lives.

To help avert these situations in the future, surgeons and other health care professionals are encouraged to advocate in their home states for the adoption of the UEVHPA and to urge their members of Congress to support the Good Samaritan Health Professionals Act of 2013. The ACS offers a new platform called SurgeonsVoice, which allows members to quickly and easily send personalized electronic letters to their representatives and senators requesting that they support this legislation. A form letter in support of H.R. 1733 is available on the website. SurgeonsVoice also supplies contact information for the district offices of legislators so that surgeons can request meetings with their elected officials to discuss these issues in person and share personal stories, which often have the greatest impact. SurgeonsVoice also includes contact information for each individual ACS member’s state legislators.

In addition, the ACS State Affairs staff can offer guidance and support to surgeons interested in advocating for this legislation in states that have yet to adopt the UEVHPA. Surgeons can play a vital role by offering testimony in support of the UEVHPA to state legislatures. The model legislation and educational materials are available on the ACS Advocacy and Health Policy Web page, and State Affairs staff can be reached for further questions at state_affairs@facs.org.

Through grassroots advocacy, surgeons have the power to shape emergency and disaster care for the entire nation.

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References

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13. Volunteer Protection Act of 1997. Pub. L. No. 105-19. Codified at 42 U.S.C. §§ 14501. Available at: http://www.gpo.gov/fdsys/pkg/PLAW-105publ19/pdf/PLAW-105publ19.pdf. Accessed February 7, 2014.
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