HD2 - Report of the Joint Subcommittee to Study the Feasibility of Offering Liability Protections to Health Care Providers Rendering Aid During a State or Local Emergency


Executive Summary:
At the 2007 Session of the General Assembly, the Joint Subcommittee to Study Liability Protections to Health Care Providers Rendering Aid during a State or Local Emergency was established pursuant to House Joint Resolution 701 and Senate Joint Resolution 390. The 13-member Joint Subcommittee was directed to examine the estimated benefits of granting enhanced liability protections for health care providers who respond to state or local emergencies as well as looking at how many other states provide these kinds of liability protections.

The Joint Subcommittee elected Delegate Phillip A. Hamilton and Senator Stephen D. Newman as its Chairman and Vice-Chairman, respectively. The Joint Subcommittee held three meetings during the 2007 Interim.

During the course of its three meetings, the Joint Subcommittee received extensive testimony from individuals in the fields of law and health care representing both the private and public sectors. At the first meeting held on August 30, 2007, the Joint Subcommittee received presentations from (1) Steven D. Gravely, J.D., M.H.A., a member of the Joint Subcommittee and an attorney specializing in health care, regarding the pros and cons of health care provider liability protections currently available under Virginia law; (2) Dr. Lisa Kaplowitz, M.D., M.S.H.A., Deputy Commissioner for Emergency Preparedness and Response, Virginia Department of Health, explaining the Department's role in emergency preparedness and response; and (3) Gerald C. Canaan, II, representing the Medical Society of Virginia, explaining health care provider liability from the standpoint of the individual physicians.

The Joint Subcommittee held its second meeting on September 27, 2007, and received presentations from (1) Michael Cline, State Coordinator of Emergency Management for the Virginia Department of Emergency Management, describing the process for emergency declarations in Virginia; (2) Katharine M. Webb, Senior Vice-President of the Virginia Hospital and Healthcare Association, discussing the provision of health care when facing limited resources; (3) J. Christopher LaGow, J.D., representing the Property Casualty Insurers Association of America, describing the relation between liability protections and insurance; and (4) the staff of the Joint Subcommittee presenting an overview of health care liability protections available in other states. In addition, four persons addressed the Joint Subcommittee during the public comment period.

At the end of the second meeting, the members of the Joint Subcommittee reached consensus on a number of legislative principles to be incorporated into draft legislation. These principles were as follows: (1) liability protections should extend to all health care providers; (2) liability protections should cover both natural and man-made disasters; (3) liability protections should apply both before and after the declaration of a state of emergency; (4) liability protections should apply to all care provided during a disaster or emergency, regardless of the possible scarcity of resources; (5) volunteer health care providers should be allowed to recover their actual expenses incurred during the rendition of care; (6) the Good Samaritan statute should be broadened to include care rendered in response to an accident or emergency that is not necessarily rendered at the scene; and (7) the exceptions to the definition of a patient found in Va. Code § 8.01-581.1 should include a reference to Va. Code § 44-146.23, the liability provision of the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. In preparation for the third meeting, the Chairman directed staff to prepare draft legislation consistent with these legislative principles.

On October 16, 2007, the Joint Subcommittee's third and final meeting was held. The meeting was dedicated to the discussion and review of the draft legislation prepared in accordance with the legislative principles endorsed at the second meeting. Staff reviewed the provisions of the draft legislation with the members of the Joint Subcommittee. In addition, three persons addressed the provisions of the draft legislation during the public comment period.

The Joint Subcommittee unanimously adopted several changes to the draft legislation; the majority were refinements and clarifications of the language concerning when the liability protections would apply and what conduct would be covered. The Chairman also noted that the study resolutions dealt with the issue of liability protections for health care providers during a declared disaster or emergency and the members unanimously agreed that the portions of the legislative draft involving the Good Samaritan statute and other statutes related to the Good Samaritan statute were beyond the scope of the study resolutions. Incorporating these changes, the Joint Subcommittee unanimously agreed on the following recommendations for legislation to be introduced during the 2008 Session of the General Assembly:

1. Add a new Code section that provides immunity from civil liability to health care providers who, in the absence of gross negligence or willful misconduct, respond to an event defined as a "disaster," "emergency," or "major disaster," provided that a state or local emergency has been or is subsequently declared. Any failure to deliver care at the same level as under non-disaster circumstances is not a breach of any duty owed by the provider where the failure results from a lack of necessary resources.

2. Combine the definitions of the terms "man-made disaster" and "natural disaster" located in Va. Code § 44-146.16 into one inclusive term "disaster" and add the term "communicable disease of public health threat" to the definition of "disaster" in Va. Code § 44-146.16.

3. Amend the definition of disaster in Va. Code § 8.01-225.01 to include a "disaster," "emergency," or "major disaster."

4. Allow a person who holds a license or certificate evidencing their professional or mechanical skills, including a health care provider, and who, without compensation, renders aid involving that skill during a disaster, to be reimbursed for his actual and necessary expenses.

5. Add a reference to Va. Code § 44-146.23 to the exceptions to the definition of the term "patient" in Va. Code § 8.01-581.1.