Liability Issues

Part 2 of my series on legal issues surrounding public health emergencies: Liability.

Federal laws protect federal workers responding in an emergency, even temporary hires, and that’s great — but there are all kinds of other liability issues to take into account.

One that’s important to us: what about volunteers? Volunteers usually work with a local organization or a local government, not directly with the federal government, so it’s their rules that cover you. Pima County will cover registered volunteers of the county, even if they are temporarily registered in an emergency situation — but only if you are acting in a role assigned to you by the county after you register with them. States and counties have their own rules and plans, and it’s really a patchwork system.

It’s important for the government to provide good liability coverage for volunteers, because their services are likely to be needed — especially medical volunteers — but who wants to volunteer if they think they’re going to get sued? Take-home message: if you want to volunteer, make sure you find out what kind of liability coverage will be provided to you by the organization or government for which you are volunteering, because there is no federal law that automatically covers you.

Another interesting issue: use of experimental treatments. Since the PREP act was passed in 2005, the HHS secretary (btw: congrats, Ms. Sebelius!) can authorize emergency use (more about that in a later post in this series) of a not-yet-approved drug or use of approved drug for treating a potential health emergency. If this happens, broad protections are extended to everyone from the drug’s manufacturer to the nurse who gives the injection and everyone in between. They are basically immune from tort liability! (This applies to FDA-approved drugs, too, but the emergency use struck me as the most interesting application.) There’s plenty more to say, but for non-law geeks, this is probably enough for one sitting. Stay tuned for future posts on flexibility, availability of resources, and civil liberties!


Public Health Emergency Law

Lawyer: This morning I participated in a conference call with several lawers from FEMA and HHS. They gave a broad overview of federal law as it applies to public health emergencies. It was interesting to me, but then, I’m a nerd, so I’ve tried to distill a few broad ideas from it to share.

First, there are two ways an emergency can be declared. Either the president can declare an emergency or a major disaster, or the HHS Secretary can declare a public health emergency (which he has just done.) The main reason for these declarations is to gain access to additional funds, supplies, or powers that may help control the emergency or, in this case, the potential emergency. The legal issues surrounding pandemic response can be grouped into several categories.

1. Liability. A lot of the laws surrounding disasters and emergencies deal with protecting emergency workers from being sued, altering licenscing regulations so that workers can more easily respond without sacrificing quality of care, and protecting volunteers. Federal laws generally apply only to federal employees. State laws vary widely.

2. Many of the laws are designed to give government agencies and hospitals more flexibility in emergency situations. Some temporarily relax requiremetns surrunding medicare and medicaid, and there is a program that allows for the emergency use of drugs or other treatments that have shown themselves to be helpful but have not yet been approved by the FDA.

3. Some laws make provision for the availability of resources - -not money as much as medical personnel (HHS commissioned corps, for example) and the Strategic National Stockpile, a large collection of medications, medical devices, supplies, and equipment that would help the US to respond to a public health emergency. The public health emergency declaration isused early this week gives the federal government the authority to deploy these resourcesnot just domestically, but overseas, if there is evidence that such an action would protect our own national security.

4. Perhaps the most fascinating legal questions concern safety vs. civil liberties. In particular, this applies to quarantine laws, which are actually in the process of being rewritten for a world in which people don’t generally travel by ship. The new laws, which are due to be passed mid-June (we’ll see) include a procedure for appeals to take care of the 5th ammendment concerns that often acompany quarantine and isolation ideas.

Lots of issues to explore here. Unless breaking news demands my blogging attention, I might take the next few entries to look at each of these areas in more detail. Stay tuned!


Perspectives on Swine Flu

This article form the BBC has some really interesting perspectives from a variety of folks living in the affected area.

It’s alarming — but it’s also interesting and gives this public health emergency a much more human face.

I (lawyer) will be listening to a CDC-sponsored conference call tomorrow on Federal Public Health Emergency Law — watch for an update tomorrow with more info!

Thoughts on Swine Flu from lawyer, wearing her disaster preparedness hat

Seen the stories recently about the swine flu that’s killed up to 61 people in Mexico? And has also been found in California and Texas? Especially scary because its victims are not the very old and very young, who are typical flu victims — it’s killing young, healthy adults. The article linked above gives details.

Mexico City has closed schools and museums to work on containing it, and though we don’t have a serious outbreak here, it remains possible. It raises some really tough questions. One topic is non-pharmaceutical interventions (NPI) — the most common of which are social distancing measures. (Maybe we’ll talk about drugs and vaccines and who should get them in another post.)

At what point does it become necessary or wise to close schools? Museums and movie theaters? Workplaces? My take is that closing museums and movie theaters and the like can help prevent the spread of disease and kind of sucks, but doesn’t create any huge social problems. Closing schools leaves many families up a creek — but is one of the most effective ways to prevent the spread of illness among  children. I’m in favor of it — and also in favor of requiring employers to allow employees to take leave if a school closure is enacted. It’s still a tough situation for a lot of people, but better a tough situation than dying of swine flu. And that’s really the bottom line here.

What about imposing requirements that people wear masks in public? What about curfews and quarantines?  It’s tricky — we don’t want to make overly restrictive laws (and even if we do, people may not obey them) but we do want to keep the public safe, and there will always be those who act irresponsibly. Even with the force of law, there’s not a lot that can be done to keep a few irresponsible people from spreading infection and posing a great risk to public health. When greatly restrictive laws have been imposed to combat previous outbreaks, governments have been unable to enforce them. Distribute masks with instructions on how to use them and why it’s important. Give people the tools to protect themselves. Success through education, not force.

Recently, we discussed what health care workers should be required to do in a public health emergency.  This discussion could become a lot less abstract in the coming months. If you work in healthcare, check into your institution’s policies.

Containment doesn’t seem to be an option here — it isn’t confined to a small geographical area — but in other pandemic situations, that’s another tough choice we’d face.

Here is my hope: that if US city and state governments end up facing this choice, they are as transparent as possible. Communicate clearly with the citizens. Let us know what’s going on. Make recommendations. Give us options. Help us understand why you’re asking us to do certain things rather than just telling us we have to.

Stay tuned for more thoughts as the situation unfolds!