Disaster Medicine and Public Health Preparedness

Case Report

Law, Liability, and Public Health Emergencies

Sharona Hoffman c1, Richard A. Goodman and Daniel D. Stier

ABSTRACT

According to many experts, a public health emergency arising from an influenza pandemic, bioterrorism attack, or natural disaster is likely to develop in the next few years. Meeting the public health and medical response needs created by such an emergency will likely involve volunteers, health care professionals, public and private hospitals and clinics, vaccine manufacturers, governmental authorities, and many others. Conducting response activities in emergency circumstances may give rise to numerous issues of liability, and medical professionals and other potential responders have expressed concern about liability exposure. Providers may face inadequate resources, an insufficient number of qualified personnel, overwhelming demand for services, and other barriers to providing optimal treatment, which could lead to injury or even death in some cases. This article describes the different theories of liability that may be used by plaintiffs and the sources of immunity that are available to public health emergency responders in the public sector, private sector, and as volunteers. It synthesizes the existing immunity landscape and analyzes its gaps. Finally, the authors suggest consideration of the option of a comprehensive immunity provision that addresses liability protection for all health care providers during public health emergencies and that, consequently, assists in improving community emergency response efforts. (Disaster Med Public Health Preparedness. 2009;3:117–125)

(Received October 04 2007)

(Accepted October 02 2008)

Key Words

  • liability;
  • immunity;
  • public health emergencies;
  • responders;
  • causes of action

Correspondence

c1 Address correspondence and reprint requests to Sharona Hoffman, JD, Case Western Reserve University School of Law, 11075 East Blvd, Cleveland, OH 44106(e-mail: sharona.hoffman@case.edu).

Prof Hoffman is senior associate dean and co-director of the Law-Medicine Center, Case Western Reserve University School of Law; Dr Goodman is co-director and Mr Stier is senior public health analyst, Public Health Law Program, Office of Strategy and Innovation, Office of the Director, Centers for Disease Control and Prevention.

The findings and conclusions in this article are those of the authors and do not necessarily represent the views of the Centers for Disease Control and Prevention or the DHHS. The article is not intended to provide a legal interpretation or opinion about federal or individual state laws, nor does it constitute legal advice. Readers who seek legal interpretation or advice on federal, state, or local law should consult a qualified attorney in the relevant jurisdiction.

For a more complete discussion of the legal issues raised in this article, see Hoffman S. Georgetown Law J. 2008;96:1913–1969.