Principles and Practice of Legal Triage During Public Health Emergencies

New York University Annual Survey of American Law, Forthcoming

Posted: 30 Jan 2009 Last revised: 2 Feb 2009

See all articles by James G. Hodge

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Evan D. Anderson

Center for Public Health Initiatives, University of Pennsylvania

Date Written: January 30, 2009

Abstract

Legal preparedness is an essential component of emergency response. One of the most significant and under-appreciated challenges of legal preparedness is the ability of legal practitioners and others to assess in real time the changing legal environment during declared emergencies that threaten the public's health. While knowledge of existing emergency laws and effective planning within the public health workforce are critical to emergency preparedness, neither can fully anticipate the legal changes that will occur during health-related crises. The flexibility and additional powers authorized via emergency statutes are designed to facilitate responses, but can also create uncertainties on questions of authority, public health powers, and leadership. This article presents the concept of legal triage as a means for understanding and responding to the legal challenges that invariably arise during declared emergencies. After illustrating the need and scope of legal triage, the article discusses legal triage in three specific challenges that have featured prominently during recent public health emergencies: allocation of scarce resources, liability protection for volunteer health practitioners, and inter-jurisdictional coordination of military personnel. The goal of the Article is to emphasize that extemporaneous legal assessment is a necessary challenge during emergencies and one which - when skillfully met - can facilitate public and private sector responses to improve morbidity and mortality.

Keywords: Public Health Emergency, Legal Preparedness, Legal Triage

Suggested Citation

Hodge, James G. and Anderson, Evan D., Principles and Practice of Legal Triage During Public Health Emergencies (January 30, 2009). New York University Annual Survey of American Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1335342

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Sandra Day O'Connor College of Law
111 E. Taylor Street
Phoenix, AZ 85004-4467
United States
480-727-8576 (Phone)

HOME PAGE: http://https://law.asu.edu/degree-programs/public-health-law-policy

Evan D. Anderson (Contact Author)

Center for Public Health Initiatives, University of Pennsylvania ( email )

Philadelphia, PA 19104
United States
2159000359 (Phone)

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