Emergency Volunteers: Legal Issues
Paul Ballard Assistant Attorney General Maryland Department of Health and Mental Hygiene
Maryland Professional Volunteer Corps
• The MPVC was started by the Department of Health and Mental Hygiene in 2001 after 911 to be better prepared to respond to emergencies with trained and credentialed volunteer health care professionals • The MPVC’s volunteers include these health professionals:
– – – – – – – – Physicians Pharmacists Nurses Social Workers Psychologists Dentists Professional Counselors Veterinarians (through the Department of Agriculture’s volunteer program, a partner with the MPVC)
Training
• DHMH’s Office of Preparedness and Response and the health occupation licensing boards provide training to MPVC volunteers in the following areas:
– Emergency preparedness – Emergency response – Deployment logistics – Behavioral health – Profession specific issues
Registration
• The MPVC registers its volunteers and issues them identification badges to be used at emergency events or drills. • Over 5,000 volunteer health care professionals are members of the MPVC.
Experience
• The MPVC has deployed volunteers to respond to Hurricane Katrina • The MPVC has drilled its volunteers by having them take part in:
– Statewide emergency readiness drills – Inauguration activities – Public health activities, emergencies or drills
Coordination With Other Volunteer Groups
• The primary purpose of the MPVC is to supplement local emergency response efforts with the resources that the MPVC can provide with its statewide volunteer database and activation system. • The MPVC has active partnerships or affiliations with multiple local, regional, State and federal agencies regarding emergency preparation and response.
Maryland Tort Claims Act
• In the past one could not sue the State. This principle of law is known as “sovereign immunity”. • Maryland has partially waived its sovereign immunity by enacting the Maryland Tort Claims Act, State Government Article, § 12-101, et seq. (MTCA).
Waiver of Sovereign Immunity
• Under certain conditions, the MTCA limits the State’s liability and shields “State personnel” from any liability. • “State personnel” include State employees and volunteers recognized by a State unit of government as volunteers for that State unit. • For county-controlled emergency response programs, local government employees and volunteers are covered by the Local Government Tort Claims Act, Courts and Judicial Proceedings Article § 5-301, et seq.
Limits of State Liability
• The State waives its sovereign immunity to the extent of $200,000 per incident and shields State personnel from liability only if the State personnel:
– Act within the scope of their public duties – Act without malice – Are not grossly negligent
Disqualifying Factors
• “Outside the scope of their public duties” is a crucial consideration because there is no liability protection if an employee or volunteer was performing duties not assigned to them. Ennis v. Crenca, 322 Md. 285 (2001) (Is the act “incident to the performance of the duties entrusted to the employee?”). • “Act with malice” simply means to attempt to harm others. • “Act with gross negligence” means to behave with reckless indifference to others’ safety. McCoy v. Hatmaker, 135 Md.App. 693 (2000). Very hard to show gross negligence.
The Attorney General
• The Attorney General will defend state personnel who he determines acted within the scope of their duties and without malice or gross negligence. • If the Attorney General declines to defend state personnel who are later vindicated in court, they may apply for reimbursement from the Board of Public Works for legal costs. • The Attorney General cannot defend state personnel from criminal prosecutions.
Federal Protections
• Volunteers are also protected from liability by the federal Volunteer Protection Act of 1997, 42 U.S.C. § 114501, et seq. (“VPA”) • The standards for immunity are similar to the MTCA, although under the VPA volunteers are not immune for vehicle accidents. Nor would the VPA entitle to them to free legal representation.
Workers’ Compensation
• Employees are entitled to workers’ compensation for injuries arising out of the performance of their duties. • Volunteers are entitled to workers’ compensation only for injuries arising out of performing their duties during an emergency or during scheduled emergency training. Labor and Employment Article § 9-232.1.
Summary
• If an employee or a volunteer performs only their assigned duties without malice or gross negligence, the Attorney General will defend them and the State will protect them from liability. • A volunteer will receive workers’ compensation only for injuries suffered during an emergency or scheduled emergency training.
Emergency Circumstances
• State personnel, including both employees and volunteers, are covered when performing authorized duties. Can the State ask them to: - (1) perform duties outside the scope of practice authorized by their license? or - (2) engage in practices that under normal circumstances would constitute malpractice?
Scope of Practice
• Under his emergency powers the Governor may suspend laws, including licensure laws as they apply to employees and volunteers responding to a declared emergency. • Any activities performed outside the normal scope of licensure must be in accordance with a Governor’s order.
Malpractice
• “Negligence is a failure to do what a reasonable person would do under the same or similar circumstances,” Polakoff v. Turner, 385 Md. 467, 480 (2005), an “emergency itself always being considered and weighed as one of the circumstances.” Warnke v. Essex, 217 Md. 183, 186 (1958). Thus, malpractice is the provision of substandard care under the circumstances, given the resources that were available to the health care professional. • “Reckless conduct is much more than mere negligence; it is a gross deviation from what a reasonable person would do.” Taylor v. Social
Emergency Standards of Care
• The Governor may authorize employees and volunteers to engage in practices that under normal circumstances might be considered to be malpractice but in exigent circumstances would be necessary to save the greatest number of people. • What might normally be viewed as “recklessly indifferent to the safety of others” and therefore grossly negligent must be reinterpreted in the context of emergency circumstances.
Emergency Standards of Care (Continued)
• Gross negligence depends on the particular circumstances. Thus, when one has plenty of time to take standard precautions in the treatment of patients, the failure to do so under normal circumstances could be grossly negligent but may be unavoidable in emergency circumstances and therefore not grossly negligent. • If the Governor determines that the best hope for saving the greatest number of people is to authorize mass dispensing in such a way that might hurt a percentage of the patients to save the greatest number of possible patients, the MTCA would immunize those employees and volunteers carrying out the Governor’s directives.
Emergency Circumstances (Continued)
• These state personnel would not be deliberately hurting patients and would not be recklessly indifferent to their safety if the emergency circumstances dictated that only way to save the greatest number of patients with the limited resources available to the State at the time. • The critical consideration would be whether a particular act or omission was committed at the direction of the Governor to respond to the emergency. If so, it would not be reckless under the circumstances to carry out the Governor’s orders to save as many people as possible.
Notice to Patients
• If possible, informed consent should be obtained so that patients are informed of the potential risks and benefits prior to receiving services or medications from a person acting outside the scope of their license or engaging in a substandard practice.