Currents in contemporary ethics. Malpractice immunity for volunteer physicians in Public Health Emergencies: adding insult to injury.

There is widespread concern among public health and emergency response officials that there could be a shortage of health care providers in a public health emergency. At least the following three factors could cause an inadequate supply of physicians, nurses, and other health care providers: (1) the severity of the emergency might greatly increase the demand for health services and outstrip the available supply; (2) health care providers might become unavailable because of their own high rates of illness, as was the case in the SARS epidemic; and (3) many health care providers might not report for duty for personal, family, or professional reasons. One way of addressing the shortage is to encourage health care providers from unaffected areas or parts of the country to volunteer their services. A variety of measures have been enacted to facilitate the use of such volunteers. For example, the Emergency Management Assistance Compact,1 signed by all 50 states, provides for licensing reciprocity, although in most states the provisions apply only to state and local government employees. Various federal laws, including the Volunteer Protection Act,2 also are designed to encourage and regulate volunteers, including health professionals.3 Most states have enacted legislation immunizing business and non-profit entities that voluntarily assist governments during emergencies.4 A more comprehensive immunity provision is contained in section 11 of the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA).5 Under this section, volunteer health practitioners are not liable for damages except in the case of willful, wanton, grossly negligent, reckless, or criminal conduct, or an intentional tort.6 As of November 2009, seven states had enacted the UEVHPA and bills to adopt the act were pending in nine other states.7 The immunity provision of the UEVHPA undoubtedly is based on the judgment that it would be unfair to impose liability on volunteer physicians and that the possibility of liability would likely discourage much-needed volunteers. It is far from clear that substantial numbers of volunteer health professionals would be needed in every public health emergency. The “volunteer health corps” model is applicable primarily to a “doomsday scenario” in which most local health care providers are killed, incapacitated, or otherwise unavailable. This is rarely the case. For example, tragically, after the September 11th attacks, there was little need for any health care providers. It also could be argued that, regardless of the severity of the emergency, the volunteer health corps model would be relevant primarily in the immediate aftermath of the event and that restoring local providers and institutions should be the top priority for emergency response officials. This article leaves aside these policy questions, and it assumes the necessity of volunteer physicians and other health care providers in a public health emergency. The central premise of the article is that legislation immunizing volunteer physicians from malpractice liability is unnecessary and constitutes misguided policy. It asserts that laws granting volunteer physicians immunity in public health emergencies have the effect of discriminating against poor people, have the potential to be socially destabilizing, and could undermine public health interventions in an emergency. The article proposes alternatives to protect the interests of physicians, patients, and the public. Although the following discussion focuses on physicians, the same reasoning also applies to malpractice actions against other health care providers.