D
R A F T
FOR DISCUSSION ONLY
Uniform Emergency Volunteer Health Practitioners
Act
NATIONAL CONFERENCE
OF COMMISSIONERS
ON UNIFORM STATE LAWS
DRAFT FOR CONSIDERATION
CONCERNING RESERVED SECTIONS 11 AND 12
For the October 2006 Drafting
Committee Meeting
Without Prefatory Note and With Comments
Copyright ©2006
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions
set forth in this draft, including the proposed statutory language and any
comments or reporter’s notes, have not been passed upon by the National
Conference of Commissioners on Uniform State Laws or the Drafting
Committee. They do not necessarily
reflect the views of the Conference and its Commissioners and the Drafting
Committee and its Members and Reporter.
Proposed statutory language may not be used to ascertain the intent or
meaning of any promulgated final statutory proposal.
September 25, 2006
DRAFTING COMMITTEE
ON UNIFORM EMERGENCY VOLUNTEER
HEALTH PRACTITIONERS
ACT
The Committee appointed by and
representing the National Conference of Commissioners on Uniform State Laws in drafting
this Act consists of the following individuals:
RAYMOND P. PEPE, 17
N. Second St., 18th Floor, Harrisburg, PA 17101-1507, Chair
ROBERT G. BAILEY,
University of Missouri-Columbia, 217 Hulston Hall, Columbia, MO 65211
STEPHEN C.
CAWOOD, 108 1/2 Kentucky Ave., P.O. Drawer 128, Pineville, KY 40977-0128
THOMAS T. GRIMSHAW, 1700 Lincoln St., Suite 3800, Denver, CO
80203
THEODORE C. KRAMER, 45 Walnut St., Brattleboro, VT 05301
AMY L. LONGO, 8805 Indian Hills Dr., Suite 280, Omaha, NE
68114-4070
JOHN J. MCAVOY, 3110 Brandywine St. NW, Washington, DC 20008
DONALD E. MIELKE, 7472 S. Shaffer Ln., Suite 100, Littleton,
CO 80127
NICHOLAS W. ROMANELLO, 11033 Mill Creek Way #206, Ft. Myers, FL 33916
JAMES G. HODGE,
JR., Johns Hopkins Bloomberg School of Public Health, 624 N. Broadway,
Baltimore, MD 21205-1996,
Reporter
EX
OFFICIO
HOWARD J. SWIBEL,
120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President
LEVI J. BENTON, State of Texas, 201 Caroline, 13th Floor,
Houston, TX 77002, Division Chair
AMERICAN
BAR ASSOCIATION ADVISOR
BRYAN ALBERT
LIANG, California Western School of Law, 350 Cedar St., San Diego, CA 92101, ABA Advisor
BARBARA J.
GISLASON, 219 Main St. SE, Ste. 506, Minneapolis, MN 55414-2152, ABA Section Advisor
PRISCILLA D.
KEITH, 3838 N. Rural St., Indianapolis, IN 46205-2930, ABA Section Advisor
EXECUTIVE
DIRECTOR
WILLIAM H.
HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL
35487-0382, Executive Director
Copies
of this Act may be obtained from:
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
211
E. Ontario Street, Suite 1300
Chicago,
Illinois 60611
www.nccusl.org
UNIFORM EMERGENCY VOLUNTEER HEALTH
PRACTITIONERS ACT
TABLE OF CONTENTS
SECTION 11.
CIVIL LIABILITY FOR VOLUNTEER HEALTH PRACTITIONERS; VICARIOUS LIABILITY 1
SECTION
12. WORKERS’ COMPENSATION COVERAGE. 8
UNIFORM EMERGENCY VOLUNTEER HEALTH PRACTITIONERS
ACT
SECTION 11.
CIVIL LIABILITY FOR VOLUNTEER HEALTH PRACTITIONERS; VICARIOUS LIABILITY.
(a)
In this section:
(1) “Coordinating entity” means an entity
that acts as a liaison to facilitate communication and cooperation between
source and host entities but does not provide health or veterinary services in
the ordinary course of its activities as liaison.
(2) “Source entity” means a health facility,
disaster relief organization, or other person located in this or another state
that employs or uses the services of health practitioners who volunteer to
provide healthcare or veterinary services in response to an emergency.
OPTION A
(b) Subject to subsection (c),
volunteer health practitioners authorized to provide health or veterinary services
pursuant to this [act] are not liable for civil damages for acts or omissions within
the scope of their responsibilities as volunteer health practitioners.
(c) Notwithstanding subsection
(b), this section does not apply to:
(1) willful, wanton, grossly negligent, reckless,
or criminal conduct of, or an intentional tort committed by, a volunteer health
practitioner;
(2) an action brought against a volunteer health
practitioner:
(A) for damages for breach of contract,
(B) by a source or host entity, or
(C) relating to the operation of a motor vehicle,
vessel, aircraft, or other vehicle by a volunteer health practitioner for which
this state requires the operator to have a valid operator’s license or to
maintain liability insurance, other than an ambulance or other emergency
response vehicle, vessel, or aircraft used within the scope of responsibilities
as a volunteer health practitioner.
(d) Source, coordinating, and host
entities are not vicariously liable for the acts or omissions of volunteer
health practitioners undertaken pursuant to this [act] and within the scope of
their responsibilities as volunteer health practitioners.
(e) Source, coordinating, and host entities are
not liable for civil damages for acts or omissions relating to the operation or
use of, or reliance upon information provided by, a registration system unless
the acts or omissions constitute an intentional tort or are willful, wanton,
grossly negligent, reckless, or criminal in nature.
[(f)
Notwithstanding subsection (b), for purposes of recovering damages from
the state, volunteer health practitioners shall be considered state employees under
the [cite to state tort claims act].]
Legislative
Note: This subsection should be revised as necessary based upon the
provisions of the state’s tort claims act to provide for the award of damages
by the state to individuals injured as a result of the negligent actions of
volunteer health practitioners and to ensure that volunteer health
practitioners will not be personally liable for civil damages to the extent
provided by subsections (b) and (c).
OPTION B
(b)
Volunteer health practitioners providing health or veterinary services
in this state or another state in response to an emergency and in a manner
consistent with this [act] shall be considered officers or employees of this
state entitled to the immunity from tort liability provided by the Emergency
Management Assistance Compact.
(c)
Source, coordinating, and host entities engaged in activities relating
to the provision of health or veterinary services pursuant to this [act] shall
be considered agents of this state entitled to immunity from tort liability in
the manner provided to this state by the Emergency Management Assistance
Compact.
(d)
A volunteer health practitioner, acting as a volunteer as that term is
defined by the federal Volunteer Protection Act, 42 USC § 14501 et seq. and associated with a source
entity that is a nonprofit organization or governmental entity, who provides
health or veterinary services for a host entity shall be deemed to be acting
within the scope of the volunteer's responsibilities and properly licensed,
certified, or authorized to provide health or veterinary services in this state
for purposes of qualifying for the limitations on liability provided by the
federal act.
Comment
A “coordinating entity” facilitates
the deployment of volunteer health practitioners during an emergency. Its
function(s) may entail coordination, referral, or transportation of volunteer
health practitioners between the source and host entities, or it may simply
deal with host entities. For example, a
state ESAR-VHP program may serve as a coordinating entity during an emergency
by helping to deploy volunteer health practitioners to a host entity. As well, entities such as charities,
churches, or other nonprofits may help facilitate the use of volunteer health
practitioners, without actually hosting the volunteers to provide health or
veterinary services. The purpose for
defining this term is to recognize the important role of coordinating entities
in helping to provide registered volunteers during emergencies (thus limiting the
potential for spontaneous voluntarism) and extend to these entities liability
protections pursuant to Section 11.
A
“source entity” deploys volunteer health practitioners directly, or via a
coordinating entity, to a host entity during an emergency. Source entities are
not typically engaged in the oversight or management of volunteer health
practitioners during a declared emergency and does not retain the
responsibility to verify the licensure status and good standing of the
volunteers who provide health or veterinary services. A source entity may
include, for example, the public or private sector employer of health
practitioners who subsequently choose to volunteer in response to an emergency
declaration.
Option A
Subsection (b) provides that volunteer
health practitioners are generally not liable for acts or omissions within the
scope of their responsibilities during an emergency. As used in this section, “responsibilities”
encompasses the provision of services that provide a direct health benefit to
individuals or human populations or to animals or animal populations.
Responsibilities may also include health-related activities that allow for the
efficient provision of health or veterinary services. Examples include
assistance in patient care where support staff are unavailable (e.g.,
transporting a patient in the immediate vicinity where health services are
being provided), and other activities that may be outside the typical scope of
health or veterinary services, but are still conducive to the provision of
patient care. Health-related services
are distinguishable from services that are of a nonhealth-related nature and
afford no direct health benefit to individuals or populations (e.g., the
operation of a non-emergency motor vehicle, administrative services, etc.).
Whether a service is health-related or nonhealth-related will depend largely on
the circumstances and consideration for whether the acts or omissions are
integral to the provision of direct health benefits.
Subsection (c) provides exceptions
to the protections from liability provided to volunteer health practitioners
under subsection (b). A volunteer health
practitioner may be liable (1) for engaging in willful, wanton, grossly
negligent, reckless, or criminal conduct, or for committing an intentional
tort; (2) in an action for damages for breach of contract or an action brought
by a source or host entity; and (3) for the operation of a motor vehicle or
other craft for which the state requires the volunteer to hold a valid license
or maintain liability insurance. These
exceptions may include situations in which a volunteer health practitioner
exceeds the scope of practice requirements in the course of providing health or
veterinary services. For example, a lab
technician will be deemed to have exceeded the scope of practice of a similarly
situated practitioner by performing surgery on an individual. A lack of education, training, and licensure
will often be sufficient to constitute, at the very least, grossly negligent
conduct pursuant to Subsection (c)(1).
The fact that a volunteer practitioner exceeds the scope of practice,
however, does not of itself constitute conduct for which liability protection
is not available.
Subsection (c)(2)(A) exempts breaches
of contract from the protection provided by subsection (b). At its core, subsection (b) provides
protection for malpractice. If a volunteer
health practitioner has executed a valid contract to provide health services, the
obligations imposed by that contract may only be avoided if there is a valid
excuse under the law governing the contract.
For example, in Sullivan v.
O’Connor, 363 Mass. 579, 296 N.E. 2d 183 (Mass. 1973), a doctor was found
by a jury to have promised a particular result and was held liable for breach
of contract even though the jury determined that he had not committed
malpractice. Subsection (d)(2)(A) would
not provide protection to the doctor for the contract claim.
Subsection (c)(2)(B) provides that a
volunteer health practitioner is not afforded civil liability protection for an
action brought by a source or host entity. This section is not intended to be
an avenue for third-party claims that might indirectly expose the practitioner
to the type of liability for which subsection (b) is intended to provide
protection. For example, a plaintiff
might file a claim against a hospital (as a host entity) for negligent
supervision of a volunteer health practitioner.
In response, the hospital might file a third-party claim against the
practitioner. If the practitioner’s
conduct was not within subsection (c), the practitioner would not be liable to
the hospital. Rather, the purpose of Section (c)(2)(B) is to provide an avenue
for source and host entities to seek redress against a volunteer health
practitioner for blatant misconduct that may not necessarily have a direct
health effect on individuals or populations.
Examples may include mismanagement of materials during a response effort
or conversion of property or goods provided for the sole purpose of distribution
to affected individuals or populations of an emergency. Such claims by the
source or host entity against the volunteer health practitioner are allowed
pursuant to this Section (c)(2)(b) (and Section (c)(1) if the volunteer’s
actions constitute a crime or other willful misconduct).
Section (c)(2)(C) exempts civil
liability protections for injuries resulting from the operation of a
non-emergency vehicle for which the host state requires the operator to hold a
valid operator’s license or maintain liability insurance. This provision is
consistent with other federal statutes that provide certain exceptions to civil
liability protections afforded to volunteers (e.g., the federal Volunteer
Protection Act, 42 U.S.C.S. § 14503(a)(4)).
The intent is to preclude liability protections for actions of volunteer
health practitioners that are outside their scope of responsibilities as
volunteers. Thus, a volunteer health practitioner driving an ambulance or other
emergency vehicle transporting patients to a triage site is acting within the
scope of his responsibilities, and may not be found liable for injuries
resulting from a vehicular accident (provided he did not act willfully or
engage in other misconduct). The same
practitioner who finishes a shift as a volunteer at a host entity and has a
vehicular accident driving across town later that evening to eat out at a
restaurant is liable for damages caused by the negligent operation of the
vehicle.
Subsection (d) provides vicarious
liability protection for source, coordinating, and host entities for acts or
omissions of their volunteer health practitioners. These entities are often
concerned about their potential liability in the deployment or use of volunteer
health practitioners during emergencies.
To alleviate these concerns and thereby facilitate the full use of
volunteer health practitioners, the act provides protection from vicarious
liability. As discussed below, such
protections are consistent with the legal nature of vicarious liability.
Vicarious civil liability applies
when an employer is responsible for the torts of its employees or agents,
despite the fact that the employer itself may not have engaged in any negligent
activities. Liability under this doctrine can attach pursuant to the theories
of respondeat superior and ostensible agency.
Respondeat superior provides for
vicarious liability when a negligent health provider is an employee or an agent
of an entity and has acted in the course of the employment. The theory presumes
than the employer has control over, and is therefore responsible for the acts
of, its employees. The extent of civil liability in such circumstances depends
on the level of control exerted by the employer over the actions of the
employee. In most jurisdictions, the employer will only be liable for acts of
the employee undertaken within the scope of employment. Hospitals, for example,
may be held liable for the acts of nurses, residents, interns, and certain
behavioral health professionals since these health practitioners are often
considered employees. Similarly, a physician who exercises control and
authority over other health practitioners (e.g., nurses, supporting staff,
etc.) can be held liable for their negligence. In one case, a surgeon was
vicariously liable for an error in a sponge count performed by the nursing
staff after surgery, although the surgeon did not participate in the count. Johnson v. Southwest Louisiana Ass’n,
693 So.2d 1195 (La.Appl.1997) (holding that the surgeon had a nondelegable duty
to remove sponges from the patient’s body).
The primary issue in applying
respondeat superior is whether an individual is a servant (e.g., employee)
subject to the control of the master (e.g., employer), or an independent
contractor. The employer’s right to control is what distinguishes an employee
from an independent contractor. Typically, entities are not held liable for the
negligent actions of independent contractors. Therefore, during an emergency, a
hospital would not be vicariously liable for the acts or omissions of a
volunteer health practitioner that provides health services to individuals or
populations within the hospital provided that the volunteers were looked upon
as independent contractors (and not as agents) of the hospital.
The theory of ostensible (or apparent)
agency imputes liability to entities where (1) the patient looks to the entity
rather than the individual health practitioner to provide care, and (2) the
entity holds the health practitioner out as its employee. Civil liability under
the theory of ostensible agency is particularly relevant in emergency
situations. When a patient enters the emergency room, he generally looks to the
institution to provide him with care and has no knowledge of the nature of the
employment relationship between the physician and the hospital. Moreover, by permitting the physician to
practice in the emergency room, the hospital is holding out that individual as
its employee. This scenario may not be applicable during an emergency for a
number of reasons. First, the host entity is not expected to exert the same degree
of control over the health practitioner tantamount to the normal operations of
an emergency room. Also, volunteer health practitioners are not agents of an
entity where no employment relationship exists between the entity and the
practitioners, and where they are not presented as providing health services
pursuant to a legal obligation (e.g., a duty to perform under a contract).
Subsection (e) clarifies that
source, coordinating, and host entities are not liable for civil damages for
acts or omissions relating to the operation or use of, or reliance upon
information provided by, a registration system. This provision supports the
essential roles of these entities in the operation and use of registration systems
and the critical need for these systems to effectively respond to
emergencies. Provided that the acts or
omissions that may lead to liability do not constitute an intentional tort or
are not willful, wanton, grossly negligent, reckless, or criminal in nature,
entities shall not be civilly liable.
Subsection (f) provides protections
for disaster victims injured by acts or omissions of volunteer health
practitioners by providing that the state will compensate the disaster victims
for injuries suffered to the same extent that the state would be liable for the
actions of state employees under state tort claims acts. This subsection is intended to authorize an
action to recover damages solely against the state and not to authorize a right
of indemnification by the state against the volunteer health practitioner or
the filing of any action directly against the volunteer practitioner to the
extent otherwise prohibited or restricted by this section.
Option B
Option B provides that volunteer
health practitioners and coordinating, host and source entities will qualify
for protections from liability as otherwise provided by the Emergency
Management Assistance Compact and the Federal Volunteer Protection Act. The limitations on liability are intended to
apply even if volunteer health practitioners or their activities as authorized
by this act would not otherwise qualify them as eligible for protections under
these state laws.
Article VI of the Emergency
Management Assistance Compact provides that officers or employees of a party
state rendering aid in another state pursuant to the compact are considered
“agents of the requesting state” for tort liability and immunity purposes and
provides that “no party state or its officers or employees rendering aid in another
state pursuant to [the] compact shall be liable on account of any act or
omission in good faith on the part of such forces while so engaged or on
account of the maintenance or use of any equipment or supplies in connection
therewith.” The compact defines “good
faith” to not include “willful misconduct, gross negligence, or
recklessness.” Subsections (b) and (c)
provide volunteer health practitioners and coordinating, host and source
entities engaged in disaster relief activities the same protections as
otherwise provided to the state and its employees and agents under the
compact. The rationale for these
provisions is that volunteers and other organizations supplementing and
supporting the actions of the state in responding to emergencies should be entitled
to the same protection as the state and its employees and agents.
The Federal Volunteer Protection Act
provides that “no volunteer of a nonprofit organization or governmental entity
shall be liable for harm caused by an act or omission of the volunteer on
behalf of the organization or entity.”
42 U.S.C. § 14503(a). These
protections do not apply to civil actions brought by nonprofit organizations or
governmental entities against volunteers and do not provide immunity from
liability for willful or criminal misconduct; gross negligence; reckless
misconduct; any “conscious, flagrant indifference to the rights or safety of
the individual harmed by the volunteer;” or for any harm caused by a volunteer
operating a motor vehicle, vessel, aircraft, or other vehicle for which the
state requires the operator to be licensed or to maintain insurance. 42 U.S.C. § 14503(a)(3) & (4). The protections provided by the Federal
Volunteer Protection Act also apply to punitive damages and limit any liability
that may arise for non-economic losses based upon comparative negligence. 42 U.S.C. §§ 14503(e) and 14504. The Federal Volunteer Protection Act
generally preempts inconsistent state laws other than those providing for
greater protection from liability to volunteers, except to the extent a state
establishes alternative rules applicable only to intrastate proceedings or
conditions immunity upon the compliance by nonprofit organizations or
governmental entities with risk management procedures or the establishment of “financially
secure source[s] of recovery for individuals who suffer harm.” 42 U.S.C. §§ 14502 and 14503(d). In order to qualify for the immunities
provided by the Federal Volunteer Protection Act, however, a volunteer must be
“acting within the scope of the volunteer's responsibilities in the nonprofit
organization or governmental entity at the time of the act or omission” and “if
appropriate or required … [be] properly licensed, certified, or authorized by
the appropriate authorities for the activities or practice in the State in
which the harm occurred.” 42 U.S.C. §
14503(a).
While the liability limitations
provided by the federal law apply only to volunteers who receive nominal
compensation (other than reasonable reimbursement or allowance for expenses
actually incurred) not in excess of $500, the purpose of subsection (d) is to
ensure volunteers who receive only nominal compensation satisfy the
requirements of § 14503(a) of the federal law.
SECTION 12. WORKERS’ COMPENSATION COVERAGE. A volunteer health
practitioner who is providing health or veterinary services in this state
pursuant to this [act] in response to an emergency, or who is traveling to or
from this state to provide such services, and who is not covered by workers’
compensation insurance or other insurance providing comparable benefits, shall
be considered an employee of this state for purposes of workers’ compensation
coverage. Workers’ compensation benefits
for volunteer health practitioners are limited to those benefits provided to
state employees under the laws of this state.
Comment
This section provides that the host
state must afford workers’ compensation coverage to volunteer health
practitioners that are not covered by workers’ compensation insurance or other
comparable coverage during their deployment. Workers’ compensation is a
no-fault system that provides an expeditious resolution of work-related claims.
Injured workers relinquish their right to bring an action against employers in
exchange for fixed benefits. This welfare
system is convenient to the employer by allowing for a predictable and
estimable award. It is also in the interests of the workers since they are not
required to demonstrate who is at fault; rather, a worker must only demonstrate
that the injury suffered arose out of or in the course of employment. Workers’ compensation programs thus protect
employees from the harms (or deaths) they incur in the scope of their
services. However, most workers’
compensation systems have a major limitation: they do not typically cover the
activities of volunteers.
Section 8 is necessary to provide
some avenue of redress for injuries incurred by volunteer health practitioners
while providing health or veterinary services during an emergency. Volunteer health
practitioners are not “employees” in the traditional sense of the term. However, in the course of providing health or
veterinary services during an emergency, they will be exposed to many of the
same risks of harm that are faced by employees of the host entity, state or
local governments, or other employers.
Under this section, a volunteer
health practitioner that has no other source of insurance for work-related
injuries or death is entitled to the same workers’ compensation benefits as
employees of the state. Accordingly, the
host state’s law governs the grant of any workers’ compensation award to a
volunteer and determines whether an employer, rather than the state, is
mandated to provide workers’ compensation coverage. This section is not
intended to supplant the workers’ compensation benefits that would otherwise be
available to volunteer health practitioners provided by an entity or other
person in the host state or the state from where they were deployed. Some
employers, for example, may laudably choose to extend their workers’
compensation benefits to their employees who choose to volunteer outside the
employer workplace during an emergency.
In addition, some state laws may mandate workers’ compensation coverage
for individuals even when providing voluntary service away from their regular
place of employment. This section is
only meant to afford workers’ compensation coverage when no other coverage
applies.
This section is not intended to allow
redress for volunteer health practitioners who may attempt to circumvent the
exclusive remedy provisions of workers’ compensation to pursue tort suits
against a host entity.
The provisions of this section are
based upon the laws of several states that require states to provide some
coverage for the actions of volunteer health practitioners. For example, Wisconsin extends the definition
of “employee” for workers’ compensation purposes to include all “emergency
management workers” even if they are volunteers, provided they have registered
with the state’s emergency management program.
Wis. Stat. §§ 102.07, 166.03 & 166.215. Connecticut, Illinois and Ohio provide
similar protections to volunteers responding to emergencies. Conn. Gen. Stat. §§ 28-1, 28-14; 20 Ill.
Comp. Stat. 3305/10; Ohio Rev. Code Ann. §§ 4123.01 & 4122.033. Similarly, Washington State provides workers’
compensation coverage to volunteer emergency workers while registered with an
approved emergency management organization if injured in the course of
performing volunteer duties and Maryland provides similar protections to civil
defense workers. Wash. Admin. Code
118-04-080; Md. Labor and Employment, § 9-232.
Minnesota likewise provides workers’ compensation coverage to volunteers
registered with state or local government agencies and Texas provides medical
benefits, but not lost wages or disability benefits, for injuries sustained by
volunteers not otherwise provided with workers’ compensation benefits. Minn. Stat. § 12.22, subd. 2a.; Tex. Lab.
Code, § 501.026.