Effective public health responses to emergencies, both natural and manmade, require timely, decisive, and sometimes controversial action by public health practitioners and personnel. Unfortunately, the perceived litigious nature of the US culture is likely to lead at least some public health personnel to fear that they are exposing themselves to the threat of lawsuit.1 The fear of personal liability might be especially prevalent during a public health emergency when the stakes of action and inaction are higher, information limited, and conditions for working and treatment are suboptimal. A public health official who delays quarantine on groundless fear of a false imprisonment charge risks the health of the entire community. Conversely, an official who acts precipitously to seize property or persons in order to avoid fictional legal risks related to a pending emergency unnecessarily trammels on the rights of individuals. Liability concerns may similarly affect healthcare personnel and other volunteers, a vital adjuvant source of labor and skill on emergency response teams. Indeed, volunteers, potential volunteers, and disaster relief organizations have identified the fear of litigation as "source of concern and anxiety" when engaged in disaster relief activities. Anecdotal evidence, as least, has suggested that the number of volunteers available during and after Hurricane Katrina was adversely affected by unresolved liability fears.2 Clinicians, especially, are wary of law and associated issues including the limits of their medical malpractice insurance policies in jurisdictions in which they are not licensed, nor covered by their policies.
While it is legitimate for public health personnel to employ reasonable measures to protect themselves from reasonable risks associated with public health practice, it is unethical to conduct an excessively defensive practice based on unreasonable fears and incomplete information. This conclusion is especially true given that the legal risks facing public health practitioners are mostly modest and usually managed by a set of relatively well-established prophylactic measures. In contrast, the risks to the public of fear-induced inaction during an emergency could be profound. Fortunately, public health personnel enjoy a relatively mature set of legal protections that limit both the range and intensity of the risk that public health practitioners face. Similarly, temporary employees, volunteers, and other personnel who will likely assist in the emergency public health efforts may be similarly protected with judicious planning. It is essential that public health officers are aware of the available legal protections in order to not only take full advantage of these protective options but also feel empowered to face looming emergencies steadfastly, free from the distractions that may be caused by unwarranted legal fears.
Sovereign and Official Immunity for State Employees
Traditionally, federal, state, and local governments enjoyed near absolute protection-or sovereign immunity-for most types of suits for damages. Over time, however, by statute and by judicial decision, the absolute doctrine of sovereign immunity has diminished. Most importantly, federal and state governments have waived tort immunity under "tort claims acts" that allow suits against the government under certain conditions.3
Despite these changes, the doctrine of "official immunity" continues to provide officers of the state broad, but not absolute, protection from individual liability for negligence suits in the performance of their official duties. In short, public officials are immunized from liability (not suit) for harms resulting from their "discretionary actions" made in "good faith." The public policy justification underlying official immunity is that individuals will make more effective decisions in the public's interest if they do not have face the fear of suit. As noted, public officers are protected only when they are performing "discretionary" duties as opposed to "ministerial duties." "Discretionary acts" involve the use of logic and the exercise of judgment to render decisions. As an example, a "discretionary" act might include the decision to offer vaccinations in order to prevent or control a particular public health emergency. In contrast, "ministerial acts" tend to be clerical or mechanical in nature, acts that must be performed in a particular manner without regard for the public employee's own judgment or opinion. Again, as an example, a "ministerial" act might include the actual conduct of the vaccination itself that must be performed according to an accepted standard of care. Thus, while a public health practitioner would likely be protected by official immunity from a negligence claim based on the decision of "if or when" to offer vaccinations, he or she would not be protected if they negligently vaccinated a particular individual and caused harm. Similarly, a public health officer who chooses to quarantine a person who has been exposed to an infectious disease might be sued for false imprisonment. But the quarantine decision would likely be ultimately deemed a "discretionary act" and the public health officer immunized from liability. Given the broad range of variables and considerations that must be evaluated in quarantine decisions, such determination almost certainly constitute "discretionary acts" and warrant the protection of official immunity.4
Official immunity, however, is not absolute. It does not protect public health officers from acts that are in "bad faith," intentional acts, or violations of clearly established rights. "Bad faith" exceptions to official immunity are not easily proven and will apply only when there is a conscious and knowing act on the part of public official subjecting an individual to harm or an obvious and known substantial risk of avoidable harm.3(pp1059-1069) Negligence, inadvertence, or even ordinary incompetence will not satisfy the "bad faith" or intentional act test. Consider, for example, the rationing/distribution decisions made regarding vaccines, medical supplies, or other essential goods during an emergency. Would individuals or groups of individuals who did not receive an essential good be able to successfully sue the public health official who made the rationing decision? Probably not. Official immunity would protect officials from these sorts of discretionary judgments as long as the decision makers did not act in "bad faith" or discriminate on the basis of race or another constitutionally protected category.5
Despite the fact that medical care on a patient-by-patient basis undeniably requires "discretion," physicians who are employed by the state in government maintained clinics and elsewhere (eg, medical schools) do not ordinarily enjoy the benefits of official immunity.4(p281) Presumably, physicians who practice medicine as employees of the state do not require additional legal protections because the "discretion" that they exercise is limited to individual patients and is not extended to a policy decision that will affect large numbers of citizens. Therefore, the judgment they exercise is no different than the judgment exercised by private physicians. The care they render, under ordinary circumstances, must conform to that which is offered during the ordinary and normal course of treatment. But, as is seen below, nongovernmental "volunteer" physicians are frequently treated differently under the law.
It is important to reiterate that official immunity does not in-and-of-itself prohibit personal injury, property damage, contract, and other suits against public health officials. Harassing and unpleasant suits may still be filed against public health practitioners for their acts and omissions related to emergency preparedness or response. But official immunity will provide a powerful absolute defense for the public health officer once the case is filed. The public health official will still be forced to defend and explain his or her activities sufficient to demonstrate that the requirements of official immunity had been satisfied and that the decisions and actions that were made satisfied the "good faith" requirement. While there are of course emotional and legal costs associated with any lawsuit and its defense, they are likely to be quite modest with public health officials. States provide legal defense for the official who is sued for act performed during the course and scope of employment. In the unlikely event that damages are awarded (eg, for negligence), the state indemnifies (reimburses) the official for the damages incurred. Moreover, such victories are extraordinarily rare, decreasing the financial incentive of plaintiff's attorneys to accept such suits. These protections and considerations do not mean that public health practitioners will not be sued, but they profoundly decrease the incentive to suit individual officials for damages and substantially reduce the burden on the very rare public health defendant.6
Finally, it is important to note that official immunity does not prevent an aggrieved individual from pursuing an injunction in court demanding or attacking a particular public health action. But these lawsuits, though distractions, do not threaten health officers with monetary damages, only with the reversal of their decision, a consequence that all in public life must face.
The Protection of Volunteers
Volunteers, local and distant, professional and lay, are expected to play an important role in managing public health emergencies. Both recruitment of volunteers before and the freedom of action of volunteers after an emergency can be affected by their perception and misperception of legal risks. As a result, it is important that the emergency volunteer's potential legal liability and protections be outlined as clearly as possible before the emergency occurs. Like public health officials, lay and professional volunteers are usually provided some manner of protection from suit, although it may differ from state to state. The Federal Volunteer Protection Act of 1997 (FVPA) provides civil liability protection for nonprofit or government volunteers if:
* the volunteer was acting within the scope of his or her responsibility;
* the volunteer was properly licensed, certified, or authorized to engage in the activity or practice (if required by the state in which the damage occurred) and those activities were within the scope of the volunteer's responsibility;
* the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a "conscious, flagrant indifference" to the rights or safety of the individual harmed by the volunteer; and
* the harm was not caused by the operation of a motor vehicle, aircraft, or other vehicle for which an operator's license or insurance is required by the state.7
The FVPA was specifically based on the recognition that "the problems created by the legitimate fears of volunteers about frivolous, arbitrary, or capricious lawsuits."8 Similarly, most states have statutes, frequently based on the FVPA, that immunize volunteers from civil liability except in cases of bad faith, gross negligence, or willful misconduct.9 Volunteers will often also be protected under the so-called "Good Samaritan" statutes that typically absolve rescuers from all but "gross negligence" in their actions.10
Some jurisdictions have created specific protections for volunteers who are also healthcare providers. Health professionals bring key skills to disaster/ emergency settings. Even outside the context of public health emergencies, most jurisdictions both provide a limited license for volunteer physicians and substantially protect physician activities as volunteers for the state. For example, the North Carolina Code holds that volunteer medical or healthcare providers who receives no compensation for services but act on behalf of local health department shall not be held liable for damages unless they were caused by "gross negligence, wanton conduct, or intentional wrongdoing."11 Healthcare volunteers would also warrant the protection of the FVPA mentioned above in appropriate cases.
These protections and others are based on the obvious public policy justification of encouraging and allowing health practitioners to volunteer their time and service during both emergency and nonemergency situations. Note that the protections are far more extensive than those enjoyed by healthcare providers actually employed by the state's public health authorities. The latter class of healthcare providers is presumably still required to provide ordinary care in the medical care they provide, another issue that should be clarified before an emergency surfaces. Volunteer health professionals, however, are provided additional incentives. Although special licensure and immunity provisions for volunteer physician are common, they vary substantially by jurisdiction. As a result, public health officers and the volunteer physicians with whom they work and attempt to recruit should review carefully the relevant state-specific provisions in advance of the need for widespread recruitment of supplemental personnel.
The National Conference of Commissioners on Uniform State Laws has drafted and released a Uniform Emergency Volunteer Health Practitioners' Act of 2007.12 The act provides three versions of draft language stating that volunteer emergency healthcare providers are not liable for their acts and omissions as clinicians, in the absence of willful, wanton, grossly negligent, or reckless conduct. The act also immunizes the volunteer healthcare practitioner's primary employer, encouraging further the willingness to provide health professionals to emergency zones. The act is promising but because it was completed only in March 2007, it is still too early to determine how many state legislatures will follow its lead. Similarly, the Model State Emergency Health Powers Act of 2001 provides broad immunity in emergency settings for state actors and agencies, for private citizens who donate the use of real property to the emergency effort, to individuals who are acting under the direction of a state agency, and to private corporations that provide emergency services at the request of the state. A significant number of states have enacted parts of the Model State Emergency Health Powers Act of 2001, but that number does not approach unanimity.13 Until then, as with the Uniform Emergency Volunteer Health Practitioners' Act of 2007, the projection of liability and immunity must be based on existing laws.
Officially Declared Emergencies
The legal protections discussed thus far are frequently valid even in the absence of a declared public health emergency. Once a state of emergency has been officially declared (ordinarily by the governor), far broader, additional protections may be available. Some immunity statutes simply and broadly state that all official emergency management functions are governmental functions, thus claiming the traditional sovereign immunity due to the state. The same statutes frequently protect all emergency workers, state employee or not, healthcare professional or not, and hold that they are protected in their reasonable attempts to implement emergency measures and thereby immune from liability based on personal injury or property damage.14 Other provisions, frankly waive professional license requirements when the individual is an authorized emergency management worker. Finally, some state provisions protect owners of property that is used by the emergency management operation forces. Under such provisions, no property owner can be held liable for death, bodily injury, or other loss if that property is being used for the purpose of sheltering, protecting, or safeguarding victims of the emergency.15
The Emergency Management Assistance Compact (EMAC) is an agreement among states to provide reciprocal mutual assistance when a disaster occurs. Among its other provisions, the EMAC provides that state employees "loaned" to a state in an emergency are considered "agents" of the host state for tort immunity purposes. According to the EMAC, no state employee volunteer to a state in need "shall be liable on account of any act or omission in good faith on the part of such forces while so engaged."16 For licensed professionals, the EMAC allows the home state license to apply in the recipient state.17 The EMAC provides significant protection to state employees assigned to a second state during a declared emergency. These are broad protections, but the EMAC's effects are limited in that they only apply during officially declared emergencies and do not affect the status of private volunteers who join relief efforts, an equally important part of the problem.
Conclusion
Frank Grad, the dean of public health law, has long argued that suits against practitioners are rare with findings of liability occurring in only a handful of cases. If anything, Grad suggests that suits are even less common than in the past and that the issue has been given far more attention by practitioners than it deserves.4(p264) Despite Grad's well-documented observations, such fears persist among both professional and lay communities. It is true that scope and nature of the dangers inherent in emergency settings might exacerbate the decision-making challenges facing public health practitioners and increase the number of potential litigants exponentially. Nevertheless, legal fears related to emergency public health actions are almost certainly exaggerated. Moreover, by now it should be clear that there is a broad range of overlapping protections available for public health officials, government employees and volunteers of all ilk who become part of a state's emergency response effort. The many existing governmental immunity and other protective devices will make it easier to work for the public's health without the distractions of legal fears. The proclamation of an official "emergency" or "disaster" will typically trigger in most jurisdictions an additional and more expansive set of legal protections and options. Several important aspects of these protections have been discussed, others have not. But together, these legal protections provide substantial legal protection to public health officials as well as intrastate and interstate volunteers who donate their time and skills to an area suffering a disaster. Unfortunately, these protections are at patchwork and do not fully cover all potential actors in the same way, and may vary at least somewhat from state to state. Thus, while a broad coverage for most types of emergency worker probably exists in some configuration, the specific liability protections available will depend substantially on the particular volunteer or worker under consideration and on the state jurisdiction.
No single policy or statute or agreement will protect all potential actors in the same way in all jurisdictions. In organizing a coordinated public health plan, officials should catalog the various legal risks, theoretical and real, faced by employees and volunteer workers and match them with known available legal protections and defenses. The Center for Law and the Public Health at Georgetown and Johns Hopkins Universities has prepared a checklist on "Civil Legal Liability and Public Health Emergencies."18 This checklist may serve as an invaluable guide for local and state emergency planners to review and assess the protections and risks that exist in their own jurisdictions and in order to allow the broadest range of protection and freedom for their public health officials, workers, and volunteers. While the precise legal protection of each actor in an emergency would probably have to be analyzed on a jurisdiction-by-jurisdiction, official-by-official, and task-by-task basis, this guidance should allow a fairly broad, if not absolute, assurance to conduct one's work full in the public interest.
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