Responders' Responsibility: Liability and Immunity in Public Health Emergencies

Abstract

Many experts predict the advent of a public health emergency resulting from a flu pandemic or bioterrorism attack in the foreseeable future. At the same time, many health care providers express significant concern about liability arising from emergency response activities, because it is unlikely that they would be able to provide optimal care in crisis conditions. They also state that this concern will likely influence their willingness to be involved in response activities. This article addresses issues that have received little attention in the legal literature: liability and immunity in public health emergencies. The article provides a first-of-its-kind comprehensive analysis of the different theories of liability that might be used by plaintiffs and the sources of immunity that are currently available to public health emergency responders. I will argue that the existing immunity scheme is a patchwork that leaves many gaps and unanswered questions. In particular, it largely excludes paid individual and corporate health care providers who may bear the greatest burden during a public health emergency as hundreds or thousands of patients simultaneously seek medical treatment. The specter of liability may induce these parties to refuse to participate in emergency response efforts, and thus, the unavailability of immunity could significantly compromise public welfare. Moreover, the risk of liability raises questions of justice because those that, unlike their more risk-averse counterparts, do treat patients, perhaps at great risk to their own health, would face potential liability rather than being rewarded for their altruism or professionalism. Consequently, the Article will craft recommendations for statutory reforms to remedy the piecemeal and deficient liability protection system that applies to health care providers responding to public health emergencies.

Keywords: liability, immunity, public health emergencies

JEL Classification: K13, K32