Liability shield in times of disaster

When physicians step up in a community crisis, they need legal protection.

The American Medical Association and other organizations have been working to strengthen civil and criminal liability protections for doctors who help out during declared disasters or emergencies. Such safeguards ensure that physicians can lend a hand without fear that their medical judgment will be questioned.

The problem was brought into sharp focus when New Orleans otolaryngologist Anna Maria Pou, MD, and two nurses were arrested in July 2006. The state attorney general alleged that they were responsible for the deaths of several patients by giving them lethal doses of pain medications after Hurricane Katrina. Dr. Pou and the nurses denied any wrongdoing. A grand jury dismissed the allegations last July.

Yet even in light of this highly publicized case -- and nearly three years after Katrina reshaped the nation's thinking on the potential scope of modern disasters -- there has been relatively little official action to enact common-sense protection.

An AMA Board of Trustees report presented at the 2007 Annual Meeting found that no single federal law provided comprehensive liability protection to doctors treating patients in a disaster or emergency. There was also no protection from criminal liability, the report noted at the time.

The report recommended attacking the issue at the state level by having the AMA develop and disseminate model legislation to state medical societies. This led to AMA-drafted bills to protect qualified doctors who volunteer or work in disaster areas from civil and criminal liability, except in cases of malicious intent or willful misconduct.

State legislatures have yet to act on this comprehensive approach.

But six states -- Colorado, Indiana, Kentucky, New Mexico, Tennessee and Utah -- have enacted measures based on the Uniform Emergency Volunteer Health Practitioners Act. The model bill gives immunity from civil liability except willful misconduct or gross negligence. (A resolution supporting liability language in the model is expected to be considered, after this editorial goes to press, at the AMA Annual Meeting this month).

Meanwhile, back in Louisiana -- the literal center of the storm on this issue -- there is progress to report, but no final word.

The Louisiana State Medical Society has lent its support to several pieces of legislation now moving through the Statehouse. In April and May, the state senate passed two bills that would provide immunity from civil liability for in-state doctors and volunteers from out of state practicing in disaster zones.

Under one measure, medical personnel, including doctors, would be relieved of general civil liability during a declared state of emergency. A second bill would give civil protections in a declared emergency when doctors render care arising from an evacuation or when they follow disaster medicine protocol at the direction of military or government authorities. Both bills have exceptions for willful misconduct. One bill also exempts gross negligence.

A third bill introduced in the state's lower house seeks to establish a disaster medicine review panel to determine if medical personnel acted in good faith in cases that lead to criminal charges after rendering medical care during declared emergencies.

As lawmakers there and elsewhere continue to ponder the issue, nature works on its own schedule. Hurricane season 2008 has started. It's a reminder of both how vulnerable we all are in times of disaster -- and how vulnerable physicians can be in the aftermath of one. The time is right to make sure physicians have the legal protections they seek so they can treat patients when disaster strikes again.