Assessing the Legal Standard of Care in Public Health Emergencies
Authors: James G. Hodge
Journal: JAMA (2010)

ON OCTOBER 23, 2009, PRESIDENT OBAMA DEclared a national emergency in response to the 2009 influenza A(H1N1) pandemic. The president’s declaration followed the US Department of Health and Human Services’ (HHS) prior declaration of a public health emergency in April 2009. Together, these declarations changed the legal landscape for influenza A(H1N1) response efforts domestically. HHS Secretary Kathleen Sebelius, for example, was authorized to waive or conditionally set aside or modify certain federal program requirements and disable federal law requiring hospitals to screen patients seeking emergency services on site. These federal responses and several state-based emergency declarations are intended to help clinicians handle surges of patients with flu symptoms and other conditions. Through what the Institute of Medicine (IOM) has recently framed “crisis standards of care,” health care practitioners (eg, physicians, nurses, counselors) adapt medical standards of care to screen and treat increasing numbers of patients and manage limited resources during severe public health emergencies. Changing medical standards, however, leads to some uncertainty in practice and corresponding unpredictability in how legal decision makers may judge the performance of health care practitioners in crises. Emergency laws provide liability protections for some health care practitioners and many volunteers. Yet, for many clinicians and health care entities lacking immunity during emergencies, questions of liability are pervasive. These clinicians and entities may be unsure about how legal decision makers may judge their actions if patients are harmed stemming from adjustments to the medical standard of care in emergencies. Medical malpractice claims have typically not proliferated in emergencies. However, fears of liability may deter clinicians and hospitals from affirmative responses to protect patients and the public’s health— especially given highly publicized cases such as those involving physicians’ actions during Hurricane Katrina. To assist medical and judicial responders, we propose a new framework for assessing legal standards of care in emergencies that seeks to balance practitioner, patient, and community needs. Existing Legal Standards of Care Nationally, clinicians are obligated to conform to medical standards of care in the provision of health services. Medical standards of care reflect the types and levels of medical care and practices appropriate for each profession. In nonemergencies, these standards are based largely on professional requirements and norms; are established by professional societies, government agencies, accrediting organizations, and other entities; and vary among types of facilities (eg, hospitals, assisted living facilities, clinics). In emergencies, medical standards of care can fluctuate to allow for rapid changes in practices as circumstances evolve. When determining liability, legal decision makers assess a clinician’s practices against the prevalent legal standard of care. As with medical standards, there is no single legal standard of care nationally. Most state courts use the national standard of care as the legal barometer of care that a clinician should provide. At the state level, the legal standard of care is based on what a reasonable and prudent practitioner of the same specialty nationally would do under similar circumstances. Some state courts will also consider a practitioner’s access to available resources (eg, medical equipment, facilities, specialists) in determining whether appropriate care was given under this standard. A minority of states refer to the locality rule, which assesses what a reasonable practitioner in the same or similar locality would do under the circumstances. Under any of these approaches, a practitioner who deviates from the legal standard of care may face medical malpractice liability for resulting patient harms.