# Presentation: 247500

## Liability Issues and the Medical Reserve Corps

- Claire Reiss, J.D., ARM
- Public Entity Risk Institute

## 
Explore basic concepts in health care practitioner liability 
Discuss how liability issues affect your MRC

- Explore basic concepts in health care practitioner liability
- Discuss how liability issues affect your MRC

## 	
	Liability is legal responsibility for one's acts or omissions. 

Criminal law
Civil law

- 	Liability is legal responsibility for one's acts or omissions.
- Criminal law
- Civil law

## 
State case law
State statutes
Federal statutes

- State case law
- State statutes
- Federal statutes

## 
	Offenses that are serious enough to be prohibited by statute and prosecuted by the government.

Assault and battery

- 	Offenses that are serious enough to be prohibited by statute and prosecuted by the government.
- Assault and battery

## 	
	Three types of liability under civil law: 

Contract
Tort
Statutory

- 	Three types of liability under civil law:
- Contract
- Tort
- Statutory

## 	
	A legally enforceable promise between two or more parties.  Contracts can be both written and verbal.

- 	A legally enforceable promise between two or more parties.  Contracts can be both written and verbal.

## Failure to achieve a promised result
Failure to use a standard of care to which you have committed 
Failure to render promised services
Liability assumed in a contract with a response partner (indemnification and hold harmless clauses in contracts)

- Failure to achieve a promised result
- Failure to use a standard of care to which you have committed
- Failure to render promised services
- Liability assumed in a contract with a response partner (indemnification and hold harmless clauses in contracts)

## 	A wrongful act or omission (other than a breach of contract) that causes harm to another, for which the law provides a remedy. 

Negligent torts
Intentional torts
Strict liability

- 	A wrongful act or omission (other than a breach of contract) that causes harm to another, for which the law provides a remedy.
- Negligent torts
- Intentional torts
- Strict liability

## 	Negligent torts arise from the failure to use reasonable care under the circumstances, causing recoverable damages.

Bad results aren’t enough
Professional liability – failure to use the degree of skill and care expected of a person in the profession

- 	Negligent torts arise from the failure to use reasonable care under the circumstances, causing recoverable damages.
- Bad results aren’t enough
- Professional liability – failure to use the degree of skill and care expected of a person in the profession

## A legal duty to the injured party to use due care;
Breach of the duty to use due care; and
Damages to the injured party caused by the failure to use due care.

- A legal duty to the injured party to use due care;
- Breach of the duty to use due care; and
- Damages to the injured party caused by the failure to use due care.

## Credentialing, screening and volunteer assignments
Patient history, assessment and triage
Patient handling 
Informed consent
Diagnosis, medication and treatment 
Patient transport 
Other operation of motor vehicles
Documentation of patient care 
Operation of equipment
Premises

- Credentialing, screening and volunteer assignments
- Patient history, assessment and triage
- Patient handling
- Informed consent
- Diagnosis, medication and treatment
- Patient transport
- Other operation of motor vehicles
- Documentation of patient care
- Operation of equipment
- Premises

## Injury to patients
Injury to volunteers
Injury to response partner workers
Damage to patient’s property
Damage to volunteer’s property
Damage to response partner’s property

- Injury to patients
- Injury to volunteers
- Injury to response partner workers
- Damage to patient’s property
- Damage to volunteer’s property
- Damage to response partner’s property

## 	
	Intentional torts arise from acts or omissions that are intentional rather than negligent. 

Intent to commit act/omission is required
Intent to cause harm may not be required 

- 	Intentional torts arise from acts or omissions that are intentional rather than negligent.
- Intent to commit act/omission is required
- Intent to cause harm may not be required

## 
	Assault – Intentional and unlawful threat of bodily harm to another, causing that person to have a well-founded fear of imminent harm.

		Example: an unstable volunteer threatens to hit 	a patient who is complaining loudly about 	waiting for medical care.

- 	Assault – Intentional and unlawful threat of bodily harm to another, causing that person to have a well-founded fear of imminent harm.
- 		Example: an unstable volunteer threatens to hit 	a patient who is complaining loudly about 	waiting for medical care.

## 	
	Battery – Unlawful and unprivileged touching of another person without permission.

		Example: performing surgery in a non-	emergency setting without the patient’s 	informed consent.

- 	Battery – Unlawful and unprivileged touching of another person without permission.
- 		Example: performing surgery in a non-	emergency setting without the patient’s 	informed consent.

## 	
	False arrest/imprisonment – Intentional and unlawful detention of another.

		Example: an involuntary isolation of patients 	not authorized under law.

- 	False arrest/imprisonment – Intentional and unlawful detention of another.
- 		Example: an* involuntary* isolation of patients 	not authorized under law.

## 	
	Defamation – Making untrue public statements that damage the reputation of a person or organization.

		Example: a frustrated volunteer tells the 	news 	media that a hospital response partner is 	incompetent.

- 	Defamation – Making untrue public statements that damage the reputation of a person or organization.
- 		Example: a frustrated volunteer tells the 	news 	media that a hospital response partner is 	incompetent.

**Notes:**
Is “news” and “media” really necessary together?

## 	
	Invasion of privacy – Unauthorized release of confidential information.

		Example: a volunteer gives co-workers a 	patient’s confidential health information without 	permission or privilege.  

- 	Invasion of privacy – Unauthorized release of confidential information.
- 		Example: a volunteer gives co-workers a 	patient’s confidential health information without 	permission or privilege.

## Medication and treatment of patients
Informed consent
Isolation of patients exposed to communicable disease
Possession and communication of health  information about patients
Security

- Medication and treatment of patients
- Informed consent
- Isolation of patients exposed to communicable disease
- Possession and communication of health  information about patients
- Security

## 	
	Liability imposed in the absence of negligent or intentional wrongful acts or omissions.

Statutory law
Common (case) law

- 	Liability imposed in the absence of negligent or intentional wrongful acts or omissions.
- Statutory law
- Common (case) law

## Products liability (dangerously defective products)
Abnormally dangerous instrumentalities (explosives such as fuel and oxygen)
Ultra hazardous activities (handling of explosives)
Workers’ Compensation

- Products liability (dangerously defective products)
- Abnormally dangerous instrumentalities (explosives such as fuel and oxygen)
- Ultra hazardous activities (handling of explosives)
- Workers’ Compensation

## Beyond simple negligence: raising the bar on damages
Vicarious liability
Negligent hiring, supervision and retention
Scope of practice
Standard of care

- Beyond simple negligence: raising the bar on damages
- Vicarious liability
- Negligent hiring, supervision and retention
- Scope of practice
- Standard of care

## 	Punitive/exemplary damages may be awarded for:
Gross negligence - reckless disregard of the consequences to the safety or property of another 
Willful acts - intentional, conscious and directed toward achieving a purpose 
Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people or property 
Reckless behavior – similar to gross negligence

- 	Punitive/exemplary damages may be awarded for:
- Gross negligence - reckless disregard of the consequences to the safety or property of another
- Willful acts - intentional, conscious and directed toward achieving a purpose
- Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people or property
- Reckless behavior – similar to gross negligence

## 	
	Indirect liability for the acts or omissions of another who is, or appears to be, acting under its control. 
An employer for employee within the scope of duties
An employer for independent contractor performing non-delegable duties or ultra hazardous activities
A nonprofit for a volunteer acting within the scope of assigned duties

- 	Indirect liability for the acts or omissions of another who is, or appears to be, acting under its control.
- An employer for employee within the scope of duties
- An employer for independent contractor performing non-delegable duties or ultra hazardous activities
- A nonprofit for a volunteer acting within the scope of assigned duties

## 	
	Direct liability of an employer for acts or omissions of employees or volunteers based on the employer’s failure to use reasonable care in selecting workers, supervising their work, and terminating their services when necessary.

- 	Direct liability of an employer for acts or omissions of employees or volunteers based on the employer’s failure to use reasonable care in selecting workers, supervising their work, and terminating their services when necessary.

## 	
	The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further defined by the professional’s experience and training.

- 	The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further defined by the professional’s experience and training.

## 	
	The standard of care for a health care professional is the “reasonable person” negligence doctrine in a professional services context.

- 	The standard of care for a health care professional is the “reasonable person” negligence doctrine in a professional services context.

## 	
	“The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” 
		Florida Statute 766.102 

- 	“The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”
- 		Florida Statute 766.102

## 
Expert witness 
Must be determined by the trial court to have sufficient expertise in the area of practice involved to be qualified to testify.

- Expert witness
- Must be determined by the trial court to have sufficient expertise in the area of practice involved to be qualified to testify.

## Reduced ability to recruit volunteers 
Fewer local champions for MRC Development
Fewer people willing to be MRC leaders
Drained MRC financial resources
Fewer successful partnerships built with:
Local government 
Public health agencies
State emergency management agencies
Nongovernmental organizations
Hospitals and other medical institutions
Neighboring jurisdictions

- Reduced ability to recruit volunteers
- Fewer local champions for MRC Development
- Fewer people willing to be MRC leaders
- Drained MRC financial resources
- Fewer successful partnerships built with*:*
- Local government
- Public health agencies
- State emergency management agencies
- Nongovernmental organizations
- Hospitals and other medical institutions
- Neighboring jurisdictions

**Notes:**
Not sure, I think between helps explain it a bit more

## Credentialing and assignment to appropriate duties
Criminal background checks
Verifying necessary licenses (professional, driving, watercraft)
Clear activation and deactivation procedures
Volunteer orientation, training and exercises
Volunteer identification badges
Written partnership agreements stating roles & responsibilities
Written engagement/utilization records 
Procedures for keeping patient treatment notes
Rules of conduct and grounds for dismissal
Communications procedures
Post-incident debriefing

- Credentialing and assignment to appropriate duties
- Criminal background checks
- Verifying necessary licenses (professional, driving, watercraft)
- Clear activation and deactivation procedures
- Volunteer orientation, training and exercises
- Volunteer identification badges
- Written partnership agreements stating roles & responsibilities
- Written engagement/utilization records
- Procedures for keeping patient treatment notes
- Rules of conduct and grounds for dismissal
- Communications procedures
- Post-incident debriefing

## 
Federal Volunteer Protection Act of 1997
State Volunteer Protection Acts
State Good Samaritan Laws
State “Emergency Management” Statutes
Individual MRC arrangements with response partners, governments, etc.

- Federal Volunteer Protection Act of 1997
- State Volunteer Protection Acts
- State Good Samaritan Laws
- State “Emergency Management” Statutes
- Individual MRC arrangements with response partners, governments, etc.

## Nonprofit organization not protected
Volunteer can be sued by nonprofit or government
States can limit protection significantly and opt out in cases involving only state residents 
Gross negligence; willful, wanton and reckless misconduct; criminal actions and others excluded
Operation of motor vehicles, watercraft and aircraft excluded
Joint and several liability eliminated only for non-economic damages

- Nonprofit *organization* not protected
- Volunteer can be sued by nonprofit or government
- States can limit protection significantly and opt out in cases involving only state residents
- Gross negligence; willful, wanton and reckless misconduct; criminal actions and others excluded
- Operation of motor vehicles, watercraft and aircraft excluded
- Joint and several liability eliminated only for non-economic damages

## 
	Some states offer substantial protection, others do not.

- 	Some states offer substantial protection, others do not.

## Activities within scope of assignment
Before a disaster, during training, planning and drills 
During disaster response 
Human caused and natural disasters
Community health activities
Transportation of injured during disaster
Transportation of participants during drills
Donations of goods, materials and premises

- Activities within scope of assignment
- Before a disaster, during training, planning and drills
- During disaster response
- Human caused and natural disasters
- Community health activities
- Transportation of injured during disaster
- Transportation of participants during drills
- Donations of goods, materials and premises

## 
Governor
Local government officials
Local emergency management agency
Request of response partners

- Governor
- Local government officials
- Local emergency management agency
- Request of response partners

## The MRC organization
Volunteers registered with the MRC
Volunteers registered with the state or local EMA
Emergent volunteers accepted on the scene
Individuals or businesses that donate labor, equipment, goods, or premises
Volunteers from other states 

- The MRC organization
- Volunteers registered with the MRC
- Volunteers registered with the state or local EMA
- Emergent volunteers accepted on the scene
- Individuals or businesses that donate labor, equipment, goods, or premises
- Volunteers from other states

**Notes:**
“the” nonprofit or “a” nonprofit?

## 
Immunity
Coverage as state or local government employee
Coverage as federal employee

- Immunity
- Coverage as state or local government employee
- Coverage as federal employee

## 
As state or local government employees
As federal employees
Through accidental injury policies providing coverage for deductibles or in excess of health insurance

- As state or local government employees
- As federal employees
- Through accidental injury policies providing coverage for deductibles or in excess of health insurance

## 
Level of credentialing
Temporary suspension of requirement to hold state license
Temporarily expanded scope of practice for non-physician health care practitioners

- Level of credentialing
- Temporary suspension of requirement to hold state license
- Temporarily expanded scope of practice for non-physician health care practitioners