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However, federal, state and local governments, public health authorities, and public health and health organizations have consistently supported liability or compensation protection for health and public health actors, especially volunteers, in the event of an emergency. In 2008, the American Medical Association (AMA) approved state review of the provisions of the Uniform Volunteer Emergency Health Practitioners Act with a view to possible enactment, particularly provisions protecting voluntary health practitioners from negligence-based liability claims (AMA, 2008).6 In 2005, The AMA passed a resolution declaring the need for “national legislation, qualified physicians. automatic immunity from medical liability in the event of a declared national disaster or federal emergency” (WADA, 2005). While there is a lack of consistency across all emergency responders and units, the current patchwork of liability safeguards can facilitate emergency planning and response by providing liability protection against negligence claims during and after declared emergencies. Together, these laws provide a protective umbrella for hundreds of thousands of practitioners, volunteers and institutions expected or invited to play a critical role in emergency response. Nevertheless, there are considerable limits to liability protection as a whole. As noted above, some legal remedies apply only to individuals or organizations for their actions during declared emergencies, and the effective date of a declaration of emergency may precede the actual date of the declaration. For example, HHS PREP filings may apply retroactively. In most cases, however, liability and other protections arising from declarations of emergency do not begin until the day of the declaration and end at the time the declaration ends. This may result in some stakeholders whose efforts precede or exceed the period of the formal declaration not being protected.

According to another view, legal standards of care are inextricably linked to standards of medical care. This view assumes that changes to medical standards, for example during a crisis, are automatically incorporated into how courts and other judicial authorities assess whether a particular actor has violated the standards negligently or willfully, since the standards of care set out in the law are, by definition, based on what a reasonable physician would do in the circumstances (Annas, 2010). Given the flexibility of legal standards of care, some suggest that laws granting immunity or other protection from liability to health care workers, volunteers or institutions are unnecessary or even harmful in that they may deny patients recourse to negligent injuries (ABA, 2011).5 During some disasters (e.g., Hurricane Katrina in 2005), patients in certain at-risk groups, such as the elderly, racial minorities, and those with lower socioeconomic status, may suffer disproportionately compared to others. For some, it seems unfair to deny these patients direct recourse against potentially negligent health workers. In previous national emergencies, the government set up compensation funds for those affected to compensate for direct damage they may have suffered as a result of the emergency. Once issued, the U.S. takes effect nationwide, regardless of additional government legal action in support of approval (FDA, 2007). The Commissioner of the FDA may set conditions for EEE activities to protect public health, including ensuring that healthcare professionals and patients are informed of risks, benefits and alternatives, and that adverse events are monitored by manufacturers. health care institutions or health authorities.24 From the point of view of liability, the USA allows the temporary use of a medicine or product: which would otherwise be prohibited.

This reduces potential claims related to the unwarranted dispensing of unauthorized drugs or other problems. The Commonwealth of Virginia provides immune protection to medical professionals in the event of resource-poor disasters following the declaration of a state or local emergency. “In the absence of gross negligence or willful misconduct, any health care provider responding to a disaster shall not be liable for any wrongful injury or murder of a person resulting from the provision or refusal of health services if (i) a national or local emergency has been declared or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions result in a lack of resources attributable to the disaster, such that the health care provider is unable to provide the level or type of care that would otherwise have been required in the absence of the emergency and that resulted in the wrongful injury or death in question. “Virginia Code § 8.01225.02 (2008).