Louisiana Senate passes liability protections for disaster responders

When disaster strikes, physicians want to be able to respond. But under such unusual circumstances, the usual standard of care may not apply.

To alleviate fears of having their medical judgment unfairly questioned, doctors are seeking to bolster state civil and criminal liability protections when they assist during officially declared emergencies.

Louisiana is the latest testing ground. In April and May, the Senate unanimously passed two bills proposing immunity from civil liability for in-state doctors and volunteers from out of state practicing in disaster zones. A third measure, which offers protection from criminal liability, is under House debate.

The effort grew out of a state committee of doctors, other health care professionals and community members that formed to advocate for the legislation.

It started with Katrina

The Committee for Disaster Medicine Reform evolved after former Louisiana Attorney General Charles C. Foti Jr. arrested New Orleans otolaryngologist Anna Maria Pou, MD, and two nurses in July 2006. Foti alleged that they had murdered several patients with lethal doses of pain medications in the aftermath of Hurricane Katrina. A grand jury dismissed the allegations last July. Dr. Pou and the nurses denied any wrongdoing.

"We said something has to come out of this, and we have to change the rules," said Dr. Pou's lawyer, Richard T. Simmons Jr., who helped draft the Louisiana legislation. For example, state Good Samaritan laws don't address catastrophic situations, he said. Yet in extreme emergencies, "doctors are forced to make a lot of decisions that are no-win, where there are no good solutions."

Under one Senate bill, doctors and other medical personnel would be relieved of general civil liability during an emergency declared by the governor. A second measure offers civil protections during an official emergency when doctors render treatment arising from an evacuation or when they are following disaster medicine protocol established by a military or governmental authority. Both bills include exceptions for willful misconduct. The first measure also exempts gross negligence.

The House legislation would require the attorney general or district attorneys to refer any possible criminal investigations of disaster care to a confidential medical review panel before bringing charges. Opinions by the three-member panel -- to include the local coroner, a doctor or nurse, and a disaster medicine expert designated by the governor -- would be advisory but could become part of a court record.

"We have to start thinking about [disaster medicine] in a much broader sense," said otolaryngologist and retired U.S. Army Colonel Keith F. DeSonier, MD, a member of the reform committee and the Louisiana State Medical Society's Council on Legislation. The LSMS supports the bills.

Dr. DeSonier was in Lake Charles, La., when it took in about 30,000 evacuees after Hurricane Katrina hit New Orleans in August 2005. The problem worsened when Hurricane Rita struck that September and the city had to relocate patients again.

"When you lose [resources] you have to allow great flexibility so people with great talent can come in and give temporary help and relief without worrying about liability exposure," Dr. DeSonier said.

Too much protection?

But state prosecutors worry that the criminal protections go too far.

E. Pete Adams, executive director of the Louisiana District Attorneys Assn., said prosecutors have a constitutional right to decide when, how and who to charge in a criminal case.

Adams called Dr. Pou's case an aberration. "This is one bad case, and you don't make new law out of one bad case. We are mindful of the stresses, but we want to pass something the courts will uphold and that can be of assistance to prosecutors."

At press time in mid-May, a House committee passed the criminal liability bill with amendments that allow prosecutors to use the medical review panel at their discretion. The district attorneys association lobbied for the changes. Suspected doctors also could not be arrested unless they posed a flight risk or until after the panel had issued an opinion.

Although the panel is optional, Simmons said public pressure "would make it difficult for district attorneys to ignore this process if they are looking at doctors who stayed behind in disastrous times."

The bill is not meant to override state authority, Dr. DeSonier said. "We're just asking to put a speed bump to slow everyone down in a disaster, because things happen so fast and people are responding differently."

National efforts

The Louisiana legislation coincides with national efforts by physicians and other advocates who say changes are necessary before calamity strikes again.

"The bottom line is there is not one standard of consistent protection," said Andrew I. Bern, MD, an American College of Emergency Physicians board member and past chair of its Disaster Medicine Section. "The question is: Do we want to be proactive?"

Doctors say Good Samaritan laws vary from state to state, and federal protections fall short.

For example, federal law covers only nonpaid volunteers, which could preclude many doctors, experts said. Federal and most state provisions also exclude criminal liability, according to American Medical Association research.

The AMA at its 2007 Annual Meeting drafted model state legislation to shield qualified doctors who volunteer or already work in a declared disaster area from civil and criminal liability, except in cases of malicious intent or willful misconduct.

The proposal also seeks to raise the liability standard under most state laws, for example, by requiring plaintiffs to show that gross negligence or deliberate harm was involved.

The Uniform Law Commission, a group of lawyers, legislators and judges, also created a model bill -- the Uniform Emergency Volunteer Health Practitioners Act -- which several states have enacted since 2006 and nearly a dozen others are considering in 2008.

The draft legislation proposes a national registry of licensed doctors and other health care professionals that states could use in emergencies to avoid waiting to verify credentials. One version also offers paid and unpaid volunteer doctors, and the entities deploying them, immunity from general civil liability, except gross negligence or willful misconduct, during disasters. An alternative mirrors federal protections and provides uncompensated volunteers protection from general negligence.

Tennessee in 2006 adopted the registry provisions but chose to use its own Good Samaritan laws as the negligence standard.

Some trial lawyers argue that existing state and federal protections suffice.

Suzanne Keith, executive director of the Tennessee Assn. for Justice, the state trial bar, said state law already considers extraneous circumstances, and the courts are unlikely to punish doctors who act in good faith.

"The tort system is going to take into account the reasonable standard of care for those circumstances, and the threshold [for negligence] would be higher," she said. To immunize doctors "is like saying they are not going to be held responsible at all."