1. Interjurisdictional Legal Responses During Public Health Emergencies and Altered Standards of Care
James G. Hodge, Jr., J.D., LL.M.
Professor, Johns Hopkins Bloomberg School of Public Health;
Executive Director, Centers for Law & the Public’s Health:
A Collaborative at Johns Hopkins and Georgetown Universities

2. Objectives Legal Environment in Emergencies Legal Triage
Altered/Situational
Standards of Care

3. Assessing the Legal Environment in Emergencies
Laws pervade emergency responses at every level of government:
They determine what constitutes a public health- or other type emergency
They help create the infrastructure through which emergencies are detected, prevented, and addressed
They authorize the performance (or nonperformance) of various emergency responses by a host of actors
They determine the extent of responsibility for potential or actual harms that arise during emergencies

4. Assessing the Legal Environment in Emergencies

5. The Convergence of Governments During Emergencies

6. The Convergence of Partners During Emergencies

7. The Convergence of Specific Actors During Emergencies

8. Legal Triage During Emergencies

9. Legal Triage During Emergencies
Legal triage refers to:
the efforts of legal actors and others to construct a favorable legal environment through a prioritization of issues and solutions that facilitate public health responses during emergencies.

10. Legal Triage During Emergencies
Legal actors must be prepared to:
Assess and monitor changing legal norms during emergencies;
Identify legal issues that may facilitate or impede public health responses as they arise;
Develop innovative, responsive legal solutions to reported barriers to public health responses;
Explain legal conclusions through tailored communications to planners and affected persons; and
Revisit the utility, efficacy, and ethicality of legal guidance.

11. Declared States of Emergency
Once an emergency has
been declared, the legal
landscape changes.

12. Emergency Declarations
How the legal landscape changes depends on the type of emergency declared

13. Emergency Declarations
Before 9/11:
Existing legal infrastructures focused on general emergency or disaster responses
“All hazards” approach
After 9/11:
Reforms of emergency laws to address “public health emergencies”
Based in part on the Center’s Model State Emergency Health Powers Act (MSEHPA)

14. Multiple Levels of Emergency Declarations
Federal
State
“HHS”
Public
Health
Emergency
“FEMA”
Emergency
Local
Emergency or
Disaster
Public
Health
Emergency
Emergency or
Disaster
Public
Health
Emergency

15. States That Define “Emergency”HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI WY RI CT NE IA PA NJ NV IN OH DE IL CA UT MD CO WV KS MO VA DC KY NC TN AZ OK NM AR SC MS AL GA TX LA FL
“Emergency” or similar term
defined in state statutes - 39
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
Data Current as of April 1, 2008

16. States That Define “Disaster”HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI WY RI CT NE IA PA NJ NV IN OH DE IL CA UT MD CO WV KS MO VA DC KY NC TN AZ OK NM AR SC MS AL GA TX LA FL
“Disaster” or similar term
defined in state statutes - 42
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
Data Current as of April 1, 2008

17. States That Define “Public Health Emergency”HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI WY RI CT NE IA PA NJ NV IN OH DE IL CA UT MD CO WV KS MO VA DC KY NC TN AZ OK NM AR SC MS AL GA TX LA FL
“Public health emergency”
or similar term defined in
state statutes - 26
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
Data Current as of April 1, 2008

18. “Public Health Emergency” Defined - MSEHPA
An occurrence or imminent threat of an illness or health condition that (1) is believed to be caused by any of the following:
Bioterrorism
Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin
Natural disaster
Chemical attack or accidental release
Nuclear attack or accident; and

19. Model State Emergency Health Powers Act (MSEHPA)
(2) poses a high probability of any of the following harms occurring in a large number of the affected population:
Death
Serious or long-term disability
Widespread exposure to infectious or toxic agent posing significant risk of substantial future harm

20. The Model State Emergency Health Powers Act (MSEHPA)
Individuals are bestowed special protections and entitlements
Government is vested with specific, expedited powers to facilitate emergency responses
State medical licensure requirements may be waived
Responders may be protected from civil liability

21. States That Define “Public Health Emergency” and “Emergency” or “Disaster”HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI WY RI CT NE IA PA NJ NV IN OH DE IL CA UT MD CO WV KS MO VA DC KY NC TN AZ OK NM AR SC MS AL GA TX LA
“Emergency”, “disaster”, and
“public health emergency” (or
similar terms) defined in state
statutes - 26 FL
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
Data Current as of April 1, 2008

22. Dilemmas of Dual Declarations
Triggering of distinct powers and responsibilities
Assignments of powers to different governmental agencies (e.g., public health agency vs. emergency management agency) can lead to overlapping priorities
Widely divergent responses and decisions on key issues

23. The Proliferation of Emergency Issues During Legal Triage
Authority
Liability
Allocation of Resources
Legal
Triage
Altered
Standards
VHPs
Public Health
Powers

24. Multiple Levels of Emergency Declarations
Federal “DHHS” public health emergency
Federal “FEMA” emergency
State public health emergency
State emergency or disaster
Local public health emergency
Local emergency or disaster
Deployment, uses, authorities, liabilities, and immunities of various actors depend on the declared emergency

25. Standards of Care - Defined
“Standards of care” in the medical context refer generally to the type and level of medical care required in specific circumstances via professional norms, accreditation, or other requirements.
“Legal standards of care” refer to the amount of skill that a medical practitioner should exercise in particular circumstances based on reasonable and common practice in medical care.

26. Standards of Care - Defined
Breaches of legal standards of care may lead to liability if:
The actor has a duty to provide care;
Breach is intentional or negligent;
Harm is proximately caused by the breach; and
Breach results in damages.

27. APHA Survey on Volunteer Health Practitioner Legal Issues Civil Liability – As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies?
69.4%
35.6%
33.8%
25%
5.5% 27
Data as of October 5, 2006 27

28. Risks of Civil Liability
Liability Risks to HCWs, Volunteers, and Hospitals

29. Civil Liability Protections
Umbrella of Liability Coverage
Federal VPA
Indemnification
EMAC
State VPA
Mutual Aid Agreements
Good
Samaritan Acts
MOUs
State EHPA
UEVHPA
JCAHO Standards/
Policies & Practices

30. UEVHPA
The Uniform Emergency Volunteer Health Practitioners Act of 2007
Developed by the National Conference of Commissioners on Uniform State Laws (NCCUSL)
Addresses key issues of registration, licensure portability, civil liability, standards of care, and workers’ compensation for VHPs
Available at

31. Standards of Care – Take Home Messages
The line of liability is intrinsically tied to changing standards of care during emergencies which may vary across jurisdictions
Predicting/determining where the line is drawn in advance is key, but flexibility is part of emergency preparedness and must be taken into account 31 31

32. Additional Resources
ESAR-VHP Legal and Regulatory Issues Report & Checklist
ESAR-VHP Legal and Regulatory Issues Report Annex:
Local Emergency Laws (Forthcoming)
Center’s Advanced Tool Kit for ESAR-VHP Coordinators
Hurricanes Katrina and Rita: Legal Issues Concerning VHPs
Compendium – October 2005
Principles and Practice of Legal Triage During Public Health
Emergencies. NYU Annual Survey of American Law 2009
All available at the Center’s website:
Thank you! 32 32