TECHNICAL REPORT

Understanding Liability Risks andProtections for Pediatric ProvidersDuring DisastersRobin L. Altman, MD, FAAP,a Karen A. Santucci, MD, FAAP,b Michael R. Anderson, MD, MBA, FAAP,c

William M. McDonnell, MD, JD, FAAP,d COMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT

abstractAlthough most health care providers will go through their careers withoutexperiencing a major disaster in their local communities, if one does occur,it can be life and career altering. The American Academy of Pediatrics hasbeen in the forefront of providing education and advocacy on the criticalimportance of disaster preparedness. From experiences over the past decade,new evidence and analysis have broadened our understanding that theconcept of preparedness is also applicable to addressing the uniqueprofessional liability risks that can occur when caring for patients andfamilies during a disaster. Concepts explored in this technical report will helpto inform pediatric health care providers, advocates, and policy makers aboutthe complexities of how providers are currently protected, with a focus onareas of unappreciated liability. The timeliness of this technical report isemphasized by the fact that during the time of its development (ie, latesummer and early fall of 2017), the United States went through anextraordinary period of multiple, successive, and overlapping disasters withina concentrated period of time of both natural and man-made causes. Ina companion policy statement (www.pediatrics.org/cgi/doi/10.1542/peds.2018-3892), recommendations are offered on how individuals, institutions, andgovernments can work together to strengthen the system of liabilityprotections during disasters so that appropriate and timely care can bedelivered with minimal fear of legal reprisal or confusion.

INTRODUCTION

A disaster, simply defined, is when community resources are challenged byan evolving circumstance, usually an acute event of unpredictable impactthat has the potential for health effects, property damage, and disruptionof services.1 The timing of a disaster can be sudden and unexpected, or itcan be slow and continual, each process having the potential of building

aDepartment of Pediatrics, New York Medical College of TouroUniversity and Maria Fareri Children's Hospital of Westchester MedicalCenter Health Network, Valhalla, New York; bDepartment of Pediatrics,School of Medicine, Yale University and Children’s EmergencyDepartment, Yale-New Haven Hospital, New Haven, Connecticut; cUCSFBenioff Children’s Hospital, San Francisco, California; and dDepartmentof Pediatrics, University of Nebraska Medical Center, Omaha, Nebraska

Drs Santucci and Anderson substantially contributed to the conceptionand design of the policy statement and technical report, analysis andinterpretation of information and references, writing of specificportions of the manuscripts, critical review, and revisions;Dr McDonnell substantially contributed to refining the conception anddesign of the policy statement and technical report, analysis andinterpretation of information, critical review, and revisions; Dr Altmanwas responsible for the original ideas, conception, and design of thepolicy statement and technical report, acquisition and analysis ofinformation and references, design of articles, outline of topics, draftof both manuscripts and writing of specific portions, compilation ofother authors’ contributions, editing, critical review and revisions, andresponse to American Academy of Pediatrics reviewers; and allauthors approved final manuscripts as submitted.

This document is copyrighted and is property of the AmericanAcademy of Pediatrics and its Board of Directors. All authors have filedconflict of interest statements with the American Academy ofPediatrics. Any conflicts have been resolved through a processapproved by the Board of Directors. The American Academy ofPediatrics has neither solicited nor accepted any commercialinvolvement in the development of the content of this publication.

Technical reports from the American Academy of Pediatrics benefitfrom expertise and resources of liaisons and internal (AAP) andexternal reviewers. However, technical reports from the AmericanAcademy of Pediatrics may not reflect the views of the liaisons orthe organizations or government agencies that they represent.

To cite: Altman RL, Santucci KA, Anderson MR, et al. AAPCOMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT.Understanding Liability Risks and Protections for PediatricProviders During Disasters. Pediatrics. 2019;143(3):e20183893

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up to the point of resourceexhaustion.2 In general, disasters maybe caused by environmentalphenomena (eg, hurricanes, blizzards,floods, and earthquakes), natural orinduced infectious exposures (eg,H1N1 influenza, Ebola, andbioterrorism), or man-made hazards(eg, industrial accidents andterrorism).3,4 Although manypediatricians and health care entitiestake disaster preparedness seriously,the ability to withstand the demandsof a disaster is directly linked tohow well an individual or a practiceand/or entity prepares.3,5 Disasterpreparedness takes many forms, suchas training oneself and staff, securingsupplies, conducting drills, learningthe local disaster command structure,understanding one’s potential role asa provider or practice, determininghow to receive and disseminatecommunications, and identifyinglocations of stockpiles, to name a few.In this technical report, we examinethe important elements surroundingpreparing for the liability issuesfacing pediatric providers who areinvolved in responding to a disaster.

The terrorist attack on September 11,2001, and the subsequent anthraxbioterrorism scare riveted the nation,and the attention of public healthofficials was focused on theimportance of health care providerpreparedness.6–9 Four years later,Hurricane Katrina directed nationalfocus to the response side and theunique challenges of caring forchildren during disasters.1,10–12

Countless children, many displacedfrom families, received medicalcare during Hurricane Katrina andin the days to weeks after itsdevastation.6,13 Over the pastdecade, that experience has beenmemorialized to help us understandhow disaster conditions alter theprovision of medical care and createliability risks for providers who areworking in those conditions.6,14–24

Society benefits when pediatricproviders move quickly to address

the emergency needs of childrenduring disasters, regardless of thecircumstances.4,25 For providers wholive and work within harm’s way ofa disaster, this would mean reportingto work despite likely personalobstacles.26–28 Such providers wouldbe followed and augmented byadditional volunteer providers, asneeded, to assist in the disaster’swake. Ideally, all providersfunctioning during crisis situationswhen resources may be scarce anddemands for health care may exceedcapacity would be able to care forpatients without fear of facingunreasonable liability risks. Evidencereveals that concern or confusionabout various legal protectionsduring public health emergenciesmay interfere with providers’responsiveness and willingness tovolunteer.2,7,11,26,29–35 Ethically,providing necessary medical careshould not be hampered by legalconsiderations.

Our purpose for this technicalreport is to educate and raiseawareness for providers and policymakers about the current state ofliability risk and protection forhealth care providers who arecaring for children during disasters.The goal is to equip and encouragepediatric providers to respond todisasters without fear ofunanticipated legal issues. Thistechnical report also supports and isaccompanied by a policy statementof the same title in which advocacyrecommendations are provided tostrengthen liability protections.36

ALTERED HEALTH CARE ENVIRONMENTAND PRACTICE DURING A DISASTER

Disaster response has been describedas an “imperfect process fraught withunpredictable dynamics andcountless decisions.”37 Unpredictabledynamics relate to the interplay of 3forces: the magnitude of the healthcare needs of the population affectedby the disaster (ie, demand), thelevels of resilience and preparedness

of the health care providersresponding to the disaster, and therate at which available resourcesbecome overwhelmed. Resilience andpreparedness refer not only to theability to ramp up space, staff, andsupplies but also to the strength ofindividual and institutional trainingand the presence of predeterminedstrategies, such as emergencyoperations plans. The relative weightof each of the intersecting forcesinfluences medical decision-making,which drives actions.1,13,38,39

If demand is matched by readinessand adequate resources, providersmay not be faced with anenvironment of care that is differentfrom that under normal conditions.14

For example, health care entitieswith policies for addressing times ofextreme surges in patient volume,such as during an infectious diseaseepidemic or after a single, containedcommunity event (such as a traincrash), have a better ability to scaleup operations as needed.3,30 On thisend of the disaster spectrum, healthcare entities and providers who areprepared for potential disasters arelikely able to use standard methodsof triage and have access to usualdiagnostic and therapeuticmodalities.35,38 Staffing may beextremely taxed, but decision-making is less likely to be altered.

However, if demand begins tooutpace readiness and/or resources,such as during a major natural event(such as an earthquake), health careprocesses can be disrupted.37

Providers may have to reallocateshrinking resources betweenpatients or locations, assume newtasks outside their usual practice orlocation because of staff shortages,and provide care in temporaryareas that might not haveconventional capabilities becauseusual clinical areas are full or notavailable.2,5,38,40–43 These changescan include, although are not limitedto, providing critical care outside ofcritical care units or using alternate

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care sites, such as mobile orcommunity-based sites, for screeningand delivering urgent care. Underthese conditions, space, staffing, andsupplies may not be consistent withdaily practice, but medical decision-making and care provided mayremain functionally equivalent tousual practice.35

If resources become inadequateduring sustained overwhelmingdemand, such as in the aftermath ofHurricane Sandy (with widespreaddamage), providers may face caringfor patients in an environment thatmakes it increasingly difficult to usetraditional decision-makingprocesses.17,18,44 Faced with severeshortages of staff, space, supplies,equipment, and medication, healthcare providers will have to makedifficult decisions about how toallocate limited resources and maynot be able to provide care that isfunctionally equivalent to usualpractice.35,45,46 An example of this iswhen triaging is shifted to addressingpatients with the best potentialoutcomes first because that is a moreeffective use of resources andtime.14,39 This approach has beendescribed as shifting from individual-based care to population-based care,a trade-off to do the greatest good forthe most people.14,25,39,43

At the extreme end of the continuumis the catastrophic disaster thatcauses devastation beyond theprimary event, such as varyingdegrees of collapse of societalinfrastructure, as happened afterHurricane Katrina and the resultingflooding.38 There may be staff fearand confusion, people not showing upfor work, lack of medications, lack oflaboratory facilities, familiesseparated, children displaced, lack ofpower, no access to clean water, lossof communication, loss oftransportation, and lack ofsecurity.3,13,14,35 Under these extremecircumstances when resources aresurpassed, providers may facewithholding or withdrawing life-

sustaining treatment so it can beredirected to a more salvageablepatient because no other treatmentoption is available.6,24,31,35,38,40

Although the focus during disastersis typically on the role of the hospitalas the center of disastermanagement, in fact, office-basedproviders can be faced with perilousconditions, limited or nonexistentresources, and challenges that mayalter medical decision-making. Theseproviders, whose practice locationsmay vary widely throughouta community, may have a smallsafety net for their practices duringmajor catastrophes and may quicklybecome overwhelmed by a disaster’simpact while being called on to servevital community functions.19,23

Conditions may result in the inabilityto get to the office because ofimpassable roads, inability toinstruct patients because ofdisrupted telephone lines, and lackof access to medical records as wellas loss or damage to equipment ormedical supplies, such asmedications or vaccines, because ofpower outages.16 Patients in need ofhigher-level care may receivetreatment in an ambulatory settingbecause emergency transfer servicesare not functioning, modes ofcommunication between providersand hospitals are interrupted, ora receiving hospital is notresponding.20 In a catastrophicdisaster, an outpatient facility may,by necessity, become a site oftriage and urgent care becausea devastated hospital may be forcedto divert patients.9 In theseconditions, it is likely that localpharmacies and patient informationand/or insurance systems areinoperable as well.20 Whena community is crippled, patientswho would normally seek basicinformation and guidance fromauthorities regarding conditions andexpectations may instead turn totheir primary care provider(s) asa trusted source.

LIABILITY RISKS DURING A DISASTER

Liability risk exists with all medicalcare scenarios, especially when thereis a less-than-optimal orunanticipated outcome. Disastercircumstances can devolve into anenvironment of limited choices forboth patients and providers.35 Patientpreference for health care optionsmay necessarily carry less weight,and providers may have fewertreatment options available to them.Denial of treatment that would havebeen provided in a routine health careenvironment may increase the chanceof a provider facing a lawsuit. It isimportant to note that malpracticeclaims after disasters are infrequent.However, there is evidence that thehealth care providers at greatest riskof being sued are those who live andwork in the disaster-affected area andreport to work instead ofevacuating.11,14

Generally during disasters, the 3broad categories of potential liabilityclaims have been described as thefollowing: suboptimal medical care,such as negligence; a regulatory oradministrative breach, such asviolating the Emergency MedicalTreatment and Labor Act (EMTALA);and wanton behavior, such ascriminal acts. Other types of potentialclaims, less discussed in the pediatricliterature but nevertheless stillpossible, include constitutionalviolations and lack of preparedness.

Claims Arising From AllegedSuboptimal Medical Care

Several types of potential claims canarise from conduct during directpatient care in a disaster. Threecommonly described examples arenegligence, abandonment, and lack ofinformed consent.2,47

Negligence

During a disaster, a provider may beforced to modify treatment ofa particular patient because of limitedsupplies of medicine, vaccines, orequipment.45 This has the potential to

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increase risk of being accused ofnegligence if the patient’s outcome isnegatively affected by the modifiedtreatment.48 A court may find liabilityagainst the provider if it determinesthat the provider had a duty to treat,that the duty was breached, that thebreach resulted in harm, and that theharm can be linked to damages.49 Todetermine that a breach occurred, thecourt must find that the providerfailed to deliver care thata reasonable individual would haveprovided under similarcircumstances.2

When a disaster progresses tooverwhelming conditions,practitioners face increased chancesof an altered health care environmentthat will demand nonroutineactions.45 Nonroutine actions mayinclude diagnosing withoutlaboratories or radiology, treatingwithout medications or equipment,managing without consultativeexpertise from specialists, assessingsymptoms and diseases outside thescope of a provider’s training, orhaving fewer to no actual treatmentoptions to consider. Providingevidence that a reasonablepractitioner would have made similardecisions becomes more difficultin a disaster environment formany reasons. For example,contemporaneous documentation ofmedical decision-making, a primarydefense for one’s actions, may becompromised because lack ofelectricity renders the electronichealth record inoperable.45 Medicalrecords for past medical history maynot be available, which may affect theappropriateness of care provided. Inaddition, conditions may be changingso rapidly that it is virtuallyimpossible to maintain the usuallevels of information sharing,communication, and collaborationwith patients or parents whenmedical care decisions must bemade.45 All of these factors cancontribute to the perception ofsuboptimal care.

Abandonment

In extreme conditions, providers maycease treating some patients entirelyso they can focus their time andresources elsewhere, includingpotentially withholding orwithdrawing life support for patientswith a lower expected chance ofsurvival.2,7,39,50 These actions canincrease the chance of a potentialclaim of abandonment, that is, theunilateral termination of a physician-patient relationship by the health careprovider (without proper notice tothe patient) when there is still thenecessity of continuing medicalattention.2 During chaotic conditionsand desperate circumstances,provider communication withpatients may not keep pace withreal-time decision-making, sowingseeds of dissatisfaction.45 Thisdissatisfaction can occur aroundpublicly visible decisions regardingthe transfer of patients to anotherfacility or general evacuation ofpeople to other locations.Determining whom to transfer orevacuate can ignite potentially violentconflict with those remainingbehind.14

Lack of Informed Consent

Another liability risk is providing carewithout proper informed consent or,in the case of a child, withoutadequate parental consent.11

Although the elements of whatconstitutes informed consent mayvary between states, it generallymeans reviewing risks, benefits, andalternatives and receiving consentbefore starting a course of treatment.Unlike competent adults, minorchildren (with some exceptions, suchas emancipated adolescents) lack thelegal authority to provide informedconsent for medical care, placing thatresponsibility on parents or legalguardians.5 During disasters, familiesmay be separated, and children maybe displaced from parents, some ofwhom may themselves be injured,making it impossible to obtain

consent for necessarytreatment.6,51,52

The primary exception to the legalrequirement for informed consentbefore treating an unaccompaniedminor is a medical emergency thata provider determines requiresimmediate action and the absence ofany indication that the parent(s)would refuse consent.51 In addition,EMTALA, described more in the nextsection, both empowers and requiresproviders in emergency departmentsto perform medical screeningexaminations and provide necessarystabilizing treatment of emergencyconditions in the absence of expressinformed consent.52 However, duringa disaster, if a separated childpresents for medical treatment ofa nonemergency condition or at analternative medical facility, theseexceptions may not apply.53

Unaccompanied children withpreexisting but stable healthconditions, who may be technology ormedication dependent, areparticularly vulnerable duringdisasters and may create legalchallenges for health careproviders.12,51

Courts generally allow considerableleeway in the likely scenario ofimplied consent, that is, a parentseparated from a child would likelyconsent to treatment of an activemedical condition.11 However, if theprovider is forced by disasterconditions to depart from routinemedical practices, treatment withoutexpress informed consent couldcreate an increased liability risk.2,11

In addition, even when a parent ispresent, there may not be time toobtain informed consent fornontraditional care or for care byproviders exceeding their usual scopeof expertise.45

Claims Arising From Administrativeor Regulatory Breach

Claims that can arise froma regulatory or administrative breachrelate to actions taken as real-time

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demands are unfolding on thefrontlines in the changing health careenvironment during a disaster, oftenduring early stages. Providers maybreach state regulation if they rush towhere the need is regardless ofwhether they are properly licensed inthat state. Overwhelmed hospitalsand providers may violate EMTALArequirements if they are forced toturn away patients in need ofemergency treatment because theylack the resources or the space totreat them. Providers may facea breakdown in their systems ofdocumentation and communication,resulting in potential exposure ofindividually identifiable healthinformation and a breach of theHealth Insurance Portability andAccountability Act (HIPAA) privacyrule.45

Practicing Without Proper StateLicensure or Privileges

A potential regulatory breach duringa disaster is practicing withouta properly recognized state license orassisting at a facility without properprivileges. This can occur when anout-of-state provider shows up at, oran in-state provider is reassigned to,an unfamiliar facility perceived to bein need of emergency manpower.2

Spontaneous volunteers, althoughtypically acting in good faith and outof a desire to help, create liabilityrisks for themselves, for theinstitution, and for their full-timeemployer.54

EMTALA Violation

Under EMTALA, hospital emergencydepartments and physicians areobligated to provide medicalscreening and treatment of patientsat a level consistent with theinstitution’s capabilities. Providersin the emergency department orinpatient units are required to treata patient until the condition has beenresolved or stabilized.55 Duringa disaster, hospitals may not be ableto provide care in line with theirusual services for many reasons, such

as insufficient staff or space, lack ofelectricity, or destroyed equipment.53

Providers may be forced to refuse totreat patients outright, may referpatients to alternative communitylocations, or may transfer patients tofacilities with less specializedcapabilities but adequate power tofunction.41,50 These actions canexpose a hospital and its providers tosanctions under EMTALA, withfurther liability exposure if a divertedpatient suffers an adverse outcome.

HIPAA Privacy Rule Breach

Another regulatory breach can occurwhen a patient’s protected healthinformation is compromised. Duringthe chaotic conditions of a disaster,lack of electricity or destroyedequipment may render normallyprotected modes of communicationand documentation inoperable,increasing the chances ofunintentional leaks or publicexposure of private healthinformation.45 Moments vulnerable topotential privacy breaches are thoseinvolving rationing resources,arranging transportation, or makingevacuation decisions, especially forpatients with special needs.12,13,34

Claims Arising From Alleged WantonBehavior

In truly extreme conditions, providerscan face claims of gross negligence oractual criminal conduct whileproviding care.48 Gross negligence iswhen negligent behavior isparticularly egregious or reckless andcloser to willful or wantonmisconduct.53 A criminal act can bepracticing without a license (inaddition to being a regulatory breach)or wantonly withholding orwithdrawing treatment, therebycausing injury or death.* These typesof allegations may arise in situationsthat are so extreme that providers

facing them have no other availablerecourse when making decisions thatwould never be made under normalcircumstances.2 Examples of suchsituations are when providers areforced to remove a ventilator from1 patient to give it to a patient whois more salvageable or to escalateparenteral pain medication fora patient who is critical with severepain but has a high risk of respiratorydepression.24,45,48 These situationscan occur because the environment ofcare is extremely compromised or hascollapsed, giving providers no otheroptions. Although less likely thanother types of claims to arise fromcare provided during an extremedisaster, criminal claims are also lesslikely to be covered or indemnified bymalpractice insurance. Furthermore,these types of claims are excludedfrom legislation that providesimmunity during disasters.48

Other Potential Claims

Constitutional Violations

Discrimination claims may arise frommedical care decisions that appear toaffect, either negatively or favorably,specific populations, including peoplewith disabilities, minorities, and thosewith limited English proficiency.7 Inaddition, equal protection claims mayarise from individuals who believethey received inferior servicesbecause of their race, ethnicity, orsocioeconomic class.29,48

Failure to Prepare

Health care entities have anobligation to prepare foremergencies, and lawsuits againsthospitals and other health careentities alleging liability for patientharms are brought and settledroutinely in the United States.30,56,57

When patient harms can be linked toan entity’s failure to preparesufficiently for emergencies,defending the claims can be difficultbecause emergency preparedness ismandated by law, endorsed bypractice, and ultimately beneficial to

* This is to be distinguished from careful,sensitive, and deliberative decisions regardingdo-not-resuscitate status or foregoing nonbeneficialtreatment in a patient who is terminally ill.

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patients.57,58 These factors andothers create a strong legalpresumption that health care entitiesare obligated to avert preventablepatient harms through emergencyplanning and preparedness.7

Multiple federal and state laws andagencies mandate or encouragehospital emergency planning andpreparedness; furthermore, the USDepartment of Homeland Securityrequires funded hospitals to adopt itsstandards within their emergencyplans.57 State laws and licensingprovisions also call for preparednessfor catastrophic events, and The JointCommission requires accreditedhospitals to demonstrate levels ofemergency preparedness.59–61 The USDepartment of Health and HumanServices has allocated hundreds ofmillions of dollars to hospitals toimprove emergency preparedness bymandating the development ofcomprehensive emergency responseplans and withholding funds fromhospitals that do not meet certainbenchmarks.9,62–64 In 2016, theCenters for Medicare and MedicaidServices (CMS) issued newemergency preparednessrequirements for facilities to developand implement emergency continuityof operations plans that contain coreelements of predisaster riskassessment, maintenance ofcommunication, and regular trainingand testing of policies andprocedures.65

LEGISLATION PROVIDING PROTECTIONSFROM CIVIL LIABILITY DURINGA DISASTER

Overview

State tort law defines the rights andliabilities arising out of an injury andthe framework through whichdamages are recoverable.66 Tort lawseeks accountability and aims tocompensate victims when providersengage in negligent conduct. Asnoted earlier, the legal basis foraccountability in medical negligence

is based on determining duty, breach,causation, and harm. Oncedetermined, those responsible can befound liable for damages in a courtof law.

Legislation can provide a powerfulshield of liability protection to healthcare providers through either limitingthe degree a provider could be heldliable or by establishing an absoluteprohibition on any liability. In theformer case, laws can createlimitations to personal liability forindividual providers throughprocesses such as reducing statutes oflimitations, establishing caps ondamage awards, or creating a victims’injury fund. In the latter, a differentand arguably more controversial typeof shield, legislation can provideimmunity against any liability undercertain conditions. This means that anindividual provider who meets thoseconditions would either not be suedor ultimately be dropped asa defendant if a malpracticecase arose.

There are no comprehensive nationalliability protections for all health careproviders during disasters.10,25

Rather, many laws exist at the federaland state levels to reduce civilliability for certain health carepractitioner categories by providingimmunity against certain types ofclaims.34,48 Table 1 providesa summary of existing federallegislation, and the following sectionsprovide basic highlights of these lawsand regulations. Important referencesand informational Web sites areprovided for a more in-depthdiscussion. These laws are describedas “patchwork” with wide variabilityand important exclusions.11,35,47,48

Protections only apply to providersacting in good faith and withoutwillful misconduct, gross negligence,or recklessness.2

Government Declarations andWaivers

Most of the laws providing liabilityprotections are triggered once an

emergency is declared by thegovernment.2,9,35 Under the RobertT. Stafford Disaster Relief andEmergency Assistance Act,a governor may request apresidential declaration ofa major disaster or emergency.67

In addition, the US Secretary ofHealth and Human Services candeclare a public health emergencyunder section 319 of the PublicHealth Service Act. Governmentdeclarations activate emergencymanagement systems that providea wide range of federal assistanceprograms to the affected area(s)and trigger emergency liabilityprotections for certain health careproviders, especially volunteers.68 Ifa disaster is beyond the combinedresponse capabilities of state andlocal governments, section 1135 ofthe Social Security Act additionallyauthorizes the US Secretary of Healthand Human Services to temporarilywaive or modify certain Medicare,Medicaid, Children’s HealthInsurance Program, and HIPAArequirements, as determinednecessary by CMS.69

The purpose of waivers is to ensurethat sufficient health care suppliesand services are available in theemergency areas during theemergency time periods to meetthe needs of individuals enrolledin Social Security Act programs andthat providers who provide suchservices in good faith can bereimbursed and exempted fromsanctions (absent any determinationof fraud or abuse). Examples of 1135waivers include the following:program certification requirements;preapproval requirements; statelicensure for interstate volunteers,as long as the provider hasequivalent licensure in anotherstate; EMTALA sanctions, such asfor the transfer of an individual whohas not been stabilized or theredirection of an individual toreceive medical screening; andpenalties for noncompliance with

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certain patient privacy provisions ofHIPAA.7,35

A significant limitation of 1135waivers and other liabilityprotections triggered by declarationsis that they commence on the date ofthe declaration, which may lag fromthe start of the disaster, and endwhen the declaration is terminated,which may precede conditionsreturning to normal operations.30,41

This can potentially leave responderswhose efforts precede or exceed thetime period of the formal declarationunprotected.70 Waivers may begranted retrospectively to the startof a disaster, but that is notguaranteed.42,53 Waivers must bepursuant to a state emergencypreparedness plan, must benecessitated by the circumstancesof the disaster, must be linked toimplementation of a hospital disasterprotocol, and do not apply to

hospitals nearby but outside of thedisaster declaration that mayexperience surge conditions fromreceiving diverted patients. Inaddition, waivers are notautomatic.2,42 Once 1135 waiverauthority has been invoked,governors and individual hospitalsmust submit requests to CMS, afterwhich need is determined.Depending on the scope, severity,and duration of the disaster, CMSmay grant “blanket” waivers to allsimilarly impacted providers in thedisaster area. Of note, 1135 waiverauthority applies only to federalprogram requirements. State lawand gubernatorial authoritydetermine state modifications torequirements for professionallicensure, credentialing orprivileging at certain facilities, andauthorization of emergency liabilityprotections for certain health careproviders.

Tort Claims Act and GovernmentEmployeesAn exception to tort lawaccountability is the doctrine ofsovereign immunity. Sovereignimmunity is a legal doctrine thatprotects a sovereign body (ie, federalor state government and theiragencies) from being held liable forcivil wrongs committed by itsemployees.66 The Federal Tort ClaimsAct, enacted in 1946, limits thisimmunity by allowing the federalgovernment to incur liability forinjuries caused by the negligent actsof a federal employee acting withinthe scope and course of theiremployment.71 Under the FederalTort Claims Act, the governmentwaives its sovereign immunity byallowing itself to be sued and givingplaintiffs the option of suing thegovernment instead of an individualemployee (ie, defendant substitution).As long as the government employee

TABLE 1 Survey of State and Federal Laws Providing Limited Immunity From Civil Liability for Health Care Providers During Disasters

Law or Act Federal or State Year First Enacted Individuals Protected Conditions

Tort Claims Act Federal, State 1946 Government employees Government consents to substitute asdefendant

Good Samaritan laws State 1980 Volunteers Rendering aid at scene of emergencyEmergency Management AssistanceCompact

State 1996 Volunteers Rendering care as an agent of therequesting state

Volunteer Protection Act Federal 1997 Volunteers Serving nonprofit organization orgovernment entity

Model State Emergency HealthPowers Act

State 2001 All providers Rendering care under contract with or atrequest of a state

Model Intrastate Mutual AidLegislation

State 2004 Volunteers Rendering care as an employee of the state

Public Readiness and EmergencyPreparedness Act

Federal 2005 All providers When dispensing a countermeasure

Uniform Emergency Volunteer HealthPractitioners Act

State 2007 Volunteers Rendering care under host entity atdirection of requesting state

Adapted from Pope TM, Palazzo MF. Legal briefing: crisis standards of care and legal protections during disasters and emergencies. J Clin Ethics. 2010;21(4):358–367; Hodge JG Jr, GarciaAM, Anderson ED, Kaufman T. Emergency legal preparedness for hospitals and health care personnel. Disaster Med Public Health Prep. 2009;3(suppl 2):S37–S44; Hodge JG Jr. The evolutionof law in biopreparedness. Biosecur Bioterror. 2012;10(1):38–48; Courtney B, Hodge JG Jr; Task Force for Pediatric Emergency Mass Critical Care. Legal considerations during pediatricemergency mass critical care events. Pediatr Crit Care Med. 2011;12(suppl 6):S152–S156; Burkle FM Jr, Williams A, Kissoon N; Task Force for Pediatric Emergency Mass Critical Care.Pediatric emergency mass critical care: the role of community preparedness in conserving critical care resources. Pediatr Crit Care Med. 2011;12(suppl 6):S141–S151; Rothstein MA.Currents in contemporary ethics. Malpractice immunity for volunteer physicians in public health emergencies: adding insult to injury. J Law Med Ethics. 2010;38(1):149–153; Rosenbaum S,Harty MB, Sheer J. State laws extending comprehensive legal liability protections for professional health-care volunteers during public health emergencies. Public Health Rep. 2008;123(2):238–241; Hanfling D, Altevogt BM, Viswanathan K, Gostin LO, eds; Committee on Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations; Institute of Medicine.Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response. Washington, DC: The National Academies Press; 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK201063/pdf/Bookshelf_NBK201063.pdf. Accessed July 24, 2017; Barnett DJ, Taylor HA, Hodge JG Jr, Links JM. Resource allocation on the frontlines of public health preparednessand response: report of a summit on legal and ethical issues. Public Health Rep. 2009;124(2):295–303; Eddy A. First responder and physician liability during an emergency. Am J DisasterMed. 2013;8(4):267–272; Hoffman S, Goodman RA, Stier DD. Law, liability, and public health emergencies. Disaster Med Public Health Prep. 2009;3(2):117–125; Rutkow L, Vernick JS, WissowLS, Tung GJ, Marum F, Barnett DJ. Legal issues affecting children with preexisting conditions during public health emergencies. Biosecur Bioterror. 2013;11(2):89–95; Foltin GL, Lucky C,Portelli I, et al. Overcoming legal obstacles involving the voluntary care of children who are separated from their legal guardians during a disaster. Pediatr Emerg Care. 2008;24(6):392–398; Sauer LM, Catlett C, Tosatto R, Kirsch TD. The utility of and risks associated with the use of spontaneous volunteers in disaster response: a survey. Disaster Med Public HealthPrep. 2014;8(1):65–69; Pandemic and All-Hazards Preparedness Act, 42 xUSC 300hh et seq (2006); and Cole C, Marzen C. A review of state sovereign immunity statutes and the managementof liability risks by states. Journal of Insurance Regulation. 2013;32:45–82; and Lopez W, Kershner SP, Penn MS. EMAC volunteers: liability and workers’ compensation. Biosecur Bioterror.2013;11(3):217–225.

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commits the tort within the scope andcourse of employment, the employeecannot incur personal liability.71

A majority of states have enactedsimilar statutes. Federal and state tortclaims acts give government-employed health care providersa unique shield from liability andrelatively more protection againstmedical negligence lawsuits thanprivate clinicians.

With narrow exceptions, government-employed health care providersworking at a public facility andperforming their official duties duringa public health emergency will haveimmunity from liability fornegligence.48 However, the exceptionscan be important. For instance, theremust be a credible connectionbetween the provider’s activities andthe government’s interest, and thegovernment must consent to besubstituted as the defendant. If theseconditions do not apply, theindividual physician can be exposedto major liability.66

Under the tort claims acts,discretionary decisions bygovernment officials are immune.Therefore, nonmedical governmentemployees have immunity fordiscretionary actions duringa disaster. Nonmedical governmentemployees may include public healthofficials, law enforcement officers, oragency managers who may makedecisions regarding evacuation ofpatients or staff, resource allocation,or interstate patient transfers toinstitutions outside of the disasterzone. Each of these decisions maydirectly and profoundly influencemanagement options available for thefrontline medical providers, therebyshifting potential liability risks toproviders without the same level ofimmunity.48

Volunteers

After September 11, 2001, andHurricane Katrina, legislative focushas been to create improved systemsto streamline processes to facilitate

the movement of volunteers betweenstates during emergencies. Inaddition to liability concerns, out-of-state volunteers are faced with theneed for rapid licensing andprivileging.2,30,72,73

Liability Protections

Under the federal provisions listed inTable 1, volunteers will receiveimmunity from claims of negligenceif they are properly licensed in thestate where care is rendered, areworking for a nonprofit orgovernment entity or through anestablished response system, andare not compensated.48,74

In addition to federal laws, all statesand the District of Columbia haveenacted statutes extending qualifiedimmunity protections to volunteerswho provide emergency-relatedhealth care. The vast majority ofstates stipulate immunity for careprovided at the scene of anemergency in good faith, withoutexpectation of compensation, andabsent of gross negligence or wantonmisconduct. These Good Samaritanlaws are intended to permitphysicians to render emergency aidwithout fear of malpractice claimsstemming from that care.† Thesestatutes do not block the providerfrom being sued, but act as a defensefrom liability if invoked duringa malpractice trial.34 However, thereis much variability and ambiguitybetween states. For instance, statelaws vary on whether protectionapplies only for care provided at thescene of an isolated emergency, suchas a car crash, and may not extend toother locations, including a hospital,during a disaster.47 Furthermore,state laws vary considerably on what

constitutes “good faith” and “withoutcompensation,” that is, whetherprotection applies for a provider whois otherwise salaried in a regularjob.2,48,53,75

Licensing and Privileging

Regarding licensing, states’emergency laws recognize out-of-state health care licenses for theduration of a declared emergencythrough licensure reciprocityprovisions.48 These provisions allowfor the interstate sharing of out-of-state health care personnel whoselicenses are viewed as in-statelicenses for the duration of thedeclared emergency.76 In 2007, theUniform Emergency Volunteer HealthPractitioners Act established a systemwhereby health professionals mayregister either in advance of or duringan emergency to provide volunteerservices in another state.35,51,77,78

Registration may occur in any stateby using governmentally establishedregistration systems, such as thefederally funded Emergency Systemfor Advance Registration of VolunteerHealth Professionals.30,33,72 Thesenational systems allow states toverify an out-of-state volunteer’sidentity, licensing, andcredentialing.79 The EmergencyManagement Assistance Compactauthorizes license reciprocitybetween states for health carepractitioners during a declared stateof emergency.35

Providers of telemedicine notthemselves experiencingtechnological failures can assist withpatient monitoring and onlineconsultations during a disaster.Interstate providers temporarilyvolunteering their services viatelemedicine must have anappropriate state license, be part ofa multistate reciprocal or compactlicense, or obtain a temporarypractice permit.80 Information isavailable from the respectivelicensing boards.

† It should be noted that Good Samaritan lawsdiffer from laws that address administration ofopioid antagonist drugs for the treatment ofoverdose or that shield lay people who render aidor assist overdose victims to reach the emergencydepartment from drug possession charges, whichare also often referred to as GoodSamaritan laws.

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The National Disaster Medical System

The National Disaster Medical System(NDMS) and the Medical ReserveCorp are responsible, during declaredemergencies, for the mobilization andassignment of trained volunteers whoare considered federal employeesduring their deployment.10,41,53,81

The role of the NDMS is to providecivilian medical support to state andlocal governments for disastervictims through a national network ofrapidly deployable medical teams.41

The NDMS teams that provide generalmedical care are disaster medicalassistance teams. Under thesesystems, out-of-state volunteers areconsidered to be either federal orstate government agents and receiveliability protections accordingly. Fora volunteer who is not registered withsuch a system to receive liabilityprotection, the volunteer must workeither through another establishedresponse system, for a designated“host entity,” or at the direction of therequesting state.35,48,77,82

Private Sector Providers

In contrast to volunteers andgovernment employees, privatesector providers performing in theirregular job capacity during a disasterare generally not provided immunityfor negligence by any legislation.2 Anotable exception in some states isthe Model State Emergency HealthPowers Act, which may provideimmunity for negligence if the privateprovider is rendering care undercontract with or at the request ofa state. However, a private providerwho runs to his or her office or a localhospital to help will not receiveprotection through any of these laws.Even Good Samaritan laws,considered to be the safety net ofprotection from claims of negligencefor some actions taken duringa disaster, may not apply unless careis rendered at the scene of anemergency.83 Another exception isthe Public Readiness and EmergencyPreparedness Act, which provides

immunity for all providers fromclaims that may arise from dispensinga specific medical countermeasureduring a declared public healthemergency.35 Examples of medicalcountermeasures, many of whichwould require consent beforedistribution to children, aremedications, vaccines, medicaldevices, or lifesaving equipmentrequired to protect or treat childrenfor possible chemical, biological, ornuclear threats.84

Health care providers in the privatesector are likely to bear the brunt ofthe burden of a disaster, especially inthe early stages, as hundreds orthousands of patients rush toemergency departments, clinics, andphysicians’ offices to receive care.10

Yet, legislation does not address theassociated disproportionate liabilityrisk burden of this large percentageof crucial frontline providers.7

A small number of states haveattempted to bridge this gap byenacting laws that provide immunitymore broadly for health careproviders, regardless of volunteer orcompensation status.35 Elements ofthe laws‡ of these few states includeacting in response to a declaredemergency or disaster, in which thereis a recognized depletion of resourcesattributable to the disaster, at expressor implied request of government andconsistent with emergency plans.

ROLE OF MALPRACTICE INSURANCE

For health care practitioners who arenot protected through federal or statelegislation that provides immunity ora shield against claims, malpracticeinsurance would be the next layer ofprotection for defense and potentialindemnification if necessary.Malpractice insurance coveragediffers across states and is dependenton the specific insurance policy

language. Many providers receiveprofessional malpractice insurancethrough an employer and may havelittle input into the scope of coverage.Providers in the private sector mayobtain their own malpracticeinsurance. In either case, there mightbe need for supplemental coveragefor care provided out of state duringa disaster.

Most, but not all, malpracticecoverage is limited to the provider’susual practice scope in his or herusual practice setting and may notcross over state lines. Plans may notcover a practitioner’s actions duringan emergency if the actions falloutside the individual’s normal scopeof activity or location. This may leavethe provider completely unprotectedif, for instance, a Good Samaritan lawin that state does not apply to thecircumstances giving rise to a claim.

Insurance coverage does not preventlitigation, which can cause emotionalstress, a damaged reputation, andincreased insurance premiums.Furthermore, there is a distinctionbetween a malpractice insurancecarrier’s role in providing legal adviceand defense against a claim andproviding indemnification fordamages that are based ona monetary award by a jury verdict.Typical insurance plans provide bothdefense and indemnification fornegligence up to a specified cap inaward payments. However, mostmalpractice carriers will defendagainst claims but not indemnify forverdicts of gross negligence, willful orwanton misconduct, or crimes, whichleaves the individual practitioner atrisk for payment of monetary awardsfor these types of judgments.2,14

MITIGATING LIABILITY RISKS DURINGA DISASTER

At the heart of mitigating liabilityrisks during a disaster is beingprepared. Being prepared is not justlearning about disaster medicine. Itnecessitates taking steps in advance

‡ On file with the American Medical AssociationAdvocacy Resource Center and available via e-mailat ARC@amaassn.org.

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of a crisis to have a strategy that canbe implemented as a disasterunfolds.9 An all-hazards approach toemergency planning for disasters canidentify many different types ofpotential threats with variedapproaches to management andmitigation.85 In general, a disasterpreparedness strategy can have 3overlapping components: educatingself and personnel, securing thephysical aspects of the health careenvironment, and creatinga framework through which theprovision of care may be sustainedduring and after a disaster.

Education

For all providers, a disaster strategystarts with training and preparingthemselves and their staff for possiblecontingencies.5,86,87 The AmericanAcademy of Pediatrics (AAP) DisasterPreparedness Advisory Council hasestablished a strategic plan fordisaster preparedness in whicha roadmap for the advocacy ofchildren as well as preparedness forpediatricians is outlined.88

Addressing pediatric readiness isespecially important because themajority of children in the UnitedStates who go to emergencydepartments are seen in communityhospitals with a low pediatricvolume.89 The AAP has many readilyavailable resources, includinga preparedness checklist, forpediatric providers to keepthemselves and their patientsinformed and to play a key role forfamilies, schools, andcommunities.86,90–92

Securing the Health CareEnvironment

This mitigation strategy involvesproactively assigning contingencystaff roles and lines ofcommunication; identifyingtransportation obstacles; exploringback-up energy sources or alternatelocations to provide services; creatingtemporary medical records;protecting valuable equipment or

medical supplies, such as vaccinesand medication; identifying how toreceive accurate information and up-to-date instructions from authorities;and considering the impact onpatients with special needs, especiallythose who are technologydependent.8,93

Framework for Sustained Provisionof Care

Liability risk mitigation also includestaking steps to improve the likelihoodthat provision of care will not beinterrupted. This involves developingmethods for keeping patients andfamilies informed during prolongedperiods of relentless andunpredictable change. Culturalsensitivity during disasters isespecially important because beliefsabout disasters may makecommunication even more difficultand add to confusion.94 Liabilityrisk mitigation also includesunderstanding how to tap into localresources, such as emergency rescueservices, nearby hospitals, and thelocal disaster command center. Forproviders affiliated with hospitalsor other health care entities, itnecessitates being familiar with theinstitution’s crisis management plan.In considering one’s support network,providers need to be prepared for thepossibility of having to care forpatients or conditions beyond theirtraining, such as caring for adultfamily members. Disasterpreparedness training that includesthe potential lack of other specialistswhen urgent treatment is neededduring disasters can mitigate theliability risk associated with thissituation.

Although documentation is nota priority during a disaster, accuratedocumentation that reflects andmemorializes the reasoning behinddecision-making in an alteredenvironment could mitigate liabilityrisk.45 Documentation could alsoimprove postdisaster care and patientoutcomes. Accordingly, it behooves

providers to consider includingrelevant information about resourcelimitations in the medical record ifsuch limitations influence decision-making. However, there are currentlyno guidelines or consensus on thebest way to achieve the most efficient,appropriate, and transparent medicalchart during a disaster.

National recognition for the need tobetter elucidate how medical caredelivery changes under disaster-response conditions and the resultingliability risks led the US Departmentof Health and Human Services toengage with the National Academy ofSciences’ Institute of Medicine (nowthe National Academy of Medicine) toissue reports in 2009 and 2012. A keyelement of the Institute of Medicineanalysis is that the best outcomesduring a disaster occur withintegration of all components ofthe health care system (hospitals,emergency medical services,government agencies, and communityproviders).39 A second key element isthat effective crisis-level preparationrequires anticipating and preparingfor how a disaster can alter deliveryof health care services (ie, “crisisstandards of care”3,35). It is throughdevelopment and implementation ofeffective disaster planning thatproviders can take active steps toreduce their liability risks duringdisasters.25

THE BRIDGE BETWEEN LIABILITYCONCERNS AND PATIENTS’ RIGHTS

It is important to understand howlaws providing immunity for healthcare providers may negatively affectsome segments of the population. Inthe years since September 11, 2001,and Hurricane Katrina, a prominentconcern among public health officialshas been ensuring the presence ofadequate health care providersduring a public health emergency.27

One way of preventing a shortage isto encourage providers from outsidethe affected areas to volunteer theirservices, and laws that provide

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volunteers with immunity canremove potential obstacles forvolunteers. However, experience hasshown that when large numbers ofvolunteers have been needed aftera disaster, the predominantpopulations served were thosewithout health insurance or those toopoor to evacuate.27 Therefore,legislation providing immunity onlyfor volunteer health care providersmay have the unintentional impact ofcreating a system of unequal patients’rights and a distinction betweennonvolunteer and volunteerphysicians.3,27 During some disasters,patients in specific at-riskpopulations, such as the elderly, racialminorities, and those of lowersocioeconomic status, may sufferdisproportionately relative to others.Therefore, any laws offeringimmunity from liability for healthcare workers may havea disproportionate effect if they denycertain patient populations the rightto seek recourse for injuries causedby negligent acts.35

The extremely important role of thepediatric provider through the entirespectrum of disaster preparednessand response has been welldescribed.50,84,87 Infants, children,adolescents, and young adults haveunique physical, emotional,behavioral, developmental,communication, therapeutic, andsocial needs that make themparticularly vulnerable duringdisasters.50,56,95 Pediatric providersare best positioned to address thosevulnerabilities.25,96 Being an activeparticipant in the analysis anddiscussion of liability risks andprotection during disasters serves toadvance the important advocacy roleof the pediatrician.97

OVERSIGHT OF PEDIATRIC MEDICALRESPONSE DURING DISASTERS

Oversight and direction of medicalassets during times of crisis arecomplicated. Local jurisdictionsmaintain control of their assets and

personnel during times of crisis (ie,local hospitals, emergency medicalservices, etc). When a governordeclares a disaster, state agencies canthen mobilize assets and augmentlocal medical responses.74 Forinstance, the State of Californiaengages the Emergency MedicalServices Authority, which can sendmedical response teams andemergency medical servicesequipment to bolster the on-siteresponses. Each state has uniqueapproaches and possesses differenttypes of assets.

The federal oversight of disastermedical response is housed withinthe National Disaster Framework(Federal Emergency ManagementAgency in 2016) under theEmergency Services Framework 8.98

The lead federal agency for theEmergency Services Framework 8 isthe Department of Health and HumanServices, under the guidance of theAssistant Secretary of Preparednessand Response (ASPR). Formed underthe Pandemic and All-HazardsPreparedness Act of 2006, the ASPRis charged with the massiveresponsibility of preparing for andresponding to the health needs ofAmericans during times ofdisasters.64 The Pandemic All-Hazards PreparednessReauthorization Act of 2013reaffirmed consideration for childrenin disaster preparedness andresponse.99

The ASPR has been key in assessingand implementing needed changesfor children affected by disasters. Inresponse to the 2011 final report ofthe National Commission on Childrenand Disasters, the ASPR establisheda multiagency work group onchildren’s needs and subsequentlyhoused the National AdvisoryCommittee on Children and Disasters,supported by federal and nonfederaldisaster experts.100 The formation ofthe National Advisory Committee onChildren and Disasters was due, inlarge part, to the legislative and

advocacy leadership of the AAP andembodied in the language of thePandemic All-Hazards PreparednessReauthorization Act. A secondadvisory committee, the NationalBiodefense Science Board, is currentlycharged with assessing the scienceand data supporting current disasterplanning.101 Other key federalpartners in assuring that children’sunique needs in disasters are beingaddressed include the Centers forDisease Control and Prevention andthe Federal Emergency ManagementAgency. Since Hurricane Katrina,these agencies have formedimportant relationships with the AAPand other advocacy organizations.

This complicated federal structure isimportant for ensuring adequatepediatric response. Only throughfederal collaboration with states andregions can the nation be trulyprepared.

CONCLUSIONS

National experiences over the past15 years have revealed that preparingfor and responding to disasters arenational security concerns.102–104

Health care providers typicallyoccupy critically important roles inleadership and the implementation offrontline responses. Children andinfants are likely to be victims ina disaster and are more vulnerablethan adults.73 Specialized resourcesneeded to care for children who are illand injured vary widely bygeographical region. In a disaster,pediatric centers may beoverwhelmed or rendered inoperable,and many children may be taken tohospitals that cannot providespecialized pediatric care. Developingprehospital pediatric protocols andtransfer agreements are of paramountimportance.21,25,30,73

Because of the vulnerabilities ofchildren during disasters, pediatrichealth care providers play a uniquelyimportant role.13,25 History hasrevealed that pediatricians and other

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pediatric providers are eager to helpchildren affected by majordisasters.1,13,14,39,56 Although muchprogress has been made inaddressing the needs of childrenaffected by disasters, work remains toprotect the risk of liability for thosehealth care providers who step up tohelp the most vulnerable among us.11

Areas of liability protection inequitydeserve attention. Although allproviders responding to a disasterwill face similar conditions, arguably,the frontline nonvolunteers will befaced with unfolding conditions withan uncertain end point and a higherchance of exposure to the kinds ofliability risks explored in this report.In addition, government agents andlaw enforcement officials who areresponsible for discretionarydecisions, such as evacuation, areusually protected for those decisions,whereas the providers left to care forpatients affected by those decisionsare not.7,48 Liability protection that islinked to a government-declaredemergency might not completelyreflect, in timeliness or scope, theconditions being faced by providerson the front lines.

There are increased potential risksfor liability amid attempting to treatpatients with limited resources indifficult conditions.10,30,53 The betterprepared health care providers,institutions, volunteers, andcommunities are to care for childrenand families during disasters, thebetter the outcomes will be and thesmaller the chances of unintendedharm.105 With that in mind, the mostimportant step to reducing liabilityrisk for providers during a disaster,regardless of type and location of

health care practice, is to remaininformed and prepared for a potentialdisaster. Expanding the pool ofproperly trained pediatric volunteerswho can be quickly mobilizedremains a national priority.

The time has long passed when healthcare providers can think that it willnever happen to them. In 2000, theAAP Committee on PediatricEmergency Medicine and the AAPCommittee on Medical Liability issueda joint statement on the need forprofessional liability insurancecoverage for pediatriciansvolunteering during disasters.106

Since that time, considerably moreinformation has become available tobroaden the understanding of thescope of this issue, allowing for it tobe addressed more fullyx Reducingliability risks for health careproviders delivering essential medicalcare amid disasters requiresa multilayered, coordinated approachthrough education, preparation, and,when appropriate, legislativeprotections. Recommendationsrelated to this technical report arefound in the accompanying policystatement of the same title (www.pediatrics.org/cgi/doi/10.1542/peds.2018-3892).36

LEAD AUTHORS

Robin L. Altman, MD, FAAPKaren A. Santucci, MD, FAAPMichael R. Anderson, MD, MBA, FAAPWilliam M. McDonnell, MD, JD, FAAP

COMMITTEE ON MEDICAL LIABILITY ANDRISK MANAGEMENT, 2017–2018

Jon Mark Fanaroff, MD, JD, FAAP,ChairpersonRobin L. Altman, MD, FAAPSteven A. Bondi, JD, MD, FAAPSandeep K. Narang, MD, JD, FAAPRichard L. Oken, MD, FAAPJohn W. Rusher, MD, JD, FAAPKaren A. Santucci, MD, FAAPJames P. Scibilia, MD, FAAPSusan M. Scott, MD, JD, FAAPLaura J. Sigman, MD, JD, FAAP

FORMER COMMITTEE MEMBER

William M. McDonnell, MD, JD, FAAP

CONSULTANT

Michael R. Anderson, MD, MBA, FAAP

STAFF

Julie Kersten Ake

ACKNOWLEDGMENT

We extend our appreciation to JayGoldsmith, MD, FAAP, for his reviewand technical advice.

ABBREVIATIONS

AAP: American Academy ofPediatrics

ASPR: Assistant Secretary ofPreparedness and Response

CMS: Centers for Medicare andMedicaid Services

EMTALA: Emergency MedicalTreatment andLabor Act

HIPAA: Health InsurancePortability andAccountability Act

NDMS: National Disaster MedicalSystem

The guidance in this report does not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into account individual

circumstances, may be appropriate.

All technical reports from the American Academy of Pediatrics automatically expire 5 years after publication unless reaffirmed, revised, or retired at or before

that time.

DOI: https://doi.org/10.1542/peds.2018-3893

Address correspondence to Robin L. Altman, MD, FAAP. Email: robin_altman@nymc.edu.

x State laws are amended on a frequent basis. Forinformation about current laws addressingmedical liability in your state, please contactthe AAP Division of State Government Affairs atstgov@aap.org.

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PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275).

Copyright © 2019 by the American Academy of Pediatrics

FINANCIAL DISCLOSURE: The authors have indicated they have no financial relationships relevant to this article to disclose.

FUNDING: No external funding.

POTENTIAL CONFLICT OF INTEREST: The authors have indicated they have no potential conflicts of interest to disclose.

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