+ how a lack of emergency preparedness could have you singing the liability blues. beth gray,...

+

How a lack of emergency preparedness could have you singing the liability blues.

Beth Gray, Assistant ProfessorTimothy Boe, Graduate Student

The Getting Sued Blues

For Educational Purposes Only This Is Not Legal

Advice

+Trained to think“worst case”

Not my intention to scare

It is my intention to inform

Be aware and prepare

Not legal advice

For legal advice, seek advice from your city, county or organization’s legal counsel.

If you are a state agency, such as ADEM, seek guidance from the AG’s office.

For Educational Purposes Only This Is Not Legal Advice

+Assuming you have legalimmunity?

Hmmm, What is that old saying about making assumptions?

Although AR law, specifically A.C.A. § 21-9-301provides broad protection from tort liability, for government and governmental entities and agencies, and subdivisions, there are exceptions (based on insurance and intentional torts).

And a national trend to look closely and negatively at limitations of tort liability of certain entities, such as school boards and districts.

There are other ways to be held liable.

It is important to follow cases outside of your jurisdiction, because laws change all the time, and a court’s legal interpretation or exception, can turn your immunity assumptions upside down in one ruling.


+NIMS Compliance and Potential Legal Liability

President Bush signed Homeland Security Directive 5 (HSPD-5, which directed the secretary of the Department of Homeland Security (DHS) to develop and administer a National Incident Management System (NIMS), which would provide a consistent, nationwide approach for federal, state, local, and tribal governments to work together to prevent, prepare for, respond to, and recover from domestic security incidents.

Most states have implemented NIMS; if a state fails to implement NIMS, the result is a loss of significant federal funding opportunities.

Intention – to increase the possibility of liability for response, public health, or educational entities?

Source: Pinsky, B.M. (March 1, 2009). NIMS Directives and Liability. Retrieved from http://www.fireengineering.com/display_article/355911/25/none/none/Depar/NIMS-Directives-and-Liability


+Could this happen?

A first responder and his/her department are held liable in court for the death of someone during a response effort based on the responders failure to follow a NIMS directive?

Let’s say the responder gave a command outside of the incident command structure.


+Never say never…

Prince L. v. Waters, 850 N.Y.S.2d 803 (N.Y. App. Div. 2008).

A high-level court in New York State held that the failure to follow a mandatory, nondiscretionary NIMS directive served as a basis for liability against a fire department.

Even though a responder couldn’t be held liable for on-scene split second decisions, because the directive was clearly defined it did not require a judge or jury to second guess a responder’s emergency decision.

Although the holding is law only in New York State, many states follow similar legal principles.

The holding, therefore, should concern first responders in all states.



+Could this happen?

An emergency response entity, a public health entity, or an educational entity, is held liable for a plaintiff’s injuries because it fails to comply with NIMS requirements.


+Never say never…

NIMS has many planning requirements

If failure to comply is found to be the proximate cause of a plaintiff’s injuries or death, an emergency response entity, a public health entity, or an educational entity or the could be held liable for a plaintiff’s injuries or death.

Violation of a specific and mandatory directive to prepare a plan would not likely be held discretionary under the law. Berkovitz v. United States, 486 U.S. 531 (1988) (Remember a nondiscretionary NIMS directive served as a basis for liability against that NY fire department.)

When a national park failed to have an emergency plan in place which was held the proximate cause of a drowning, the government was held liable, and did not fall under any tort exception. Coates v. U.S., 612 F. Supp. 592, 599 (C.D. Ill. 1985)

Source: Abbott, E., & Hetzel, O. (2005). A Legal Guide to Homeland Security and Emergency Management for State and Local Governments , Chicago, IL: ABA Publishing.


+So what do you do?

Plan and prepare as set out in the NIMS directives.

Be aware of the NIMS directives that contain the word “must” (Pinsky, 2009)

Must appears to = nondiscretionary (Pinsky, 2009)

“Must” appears in the NIMS manual 76 times.



+Could this happen?

An emergency response entity, a public health entity, or an educational entity is held liable for a plaintiff’s injuries because it fails to comply with its own Standard Operating Procedures.


+Never say never…

Standard Operating Procedures (SOP)

According to Pinsky:

If policies regarding certain actions in the SOP set out requirements that appear mandatory and nondiscretionary, a responder’s on-scene actions may not be considered discretionary emergency actions.

The question will arise as to what the standard of care may be in any given circumstance. First response agencies increase the risk that their policies are introduced as the “standard of care” by using the term “standard” in the name of the document.

Documents such as “Standard of Care” and “Standard Operating Guidelines” create confusion and increase the risk that juries can view these documents as the “standard” against which the first responder must have acted.



+So what do you do?

Rather than use “Standard” in the title, name the document Best Practice Guidelines.

Insert introductory [disclaimer] language in your Best Practice Guidelines, which describes the document’s purpose.

Eliminate words such as “must” and “shall” from best practices, and use words such as “should.”

Review which policies and procedures are actually being enforced. If they are not being enforced, start enforcing them or change them.



+VolunteersFrom a management perspective

Federal Emergency Management Agency. Citizen Corps Volunteer Liability Guide: An Overview of Legal Issues and Approaches to Address Liability for Emergency Volunteers. Washington, DC: FEMA, Citizen Corps, August 7, 2009, 100 pages. Accessed at: http://www.citizencorps.gov/pdf/Citizen_Corps_Volunteer_Liability_Guide.pdf

Source: http://www.citizencorps.gov/pdf/Citizen_Corps_Volunteer_Liability_Guide.pdf

(Skip)For Educational Purposes Only This Is Not Legal Advice


Government sponsored and managed emergency volunteers

Emergency management increasingly utilizes organized and trained groups of volunteers that supplement professional emergency responders.

To address their needs, many emergency management statutes now protect registered emergency volunteers from civil liability, provide emergency volunteer injury benefits, and recognize licenses, certificates, and permits from other states.




Starting on page 59 of the Volunteer Liability Guide is Appendix 2, Checklists to guide your evaluation of how emergency volunteer liability, workers’ compensation, and licensing issues are handled.

Source: http: //www.citizencorps.gov/pdf/Citizen_Corps_Volunteer_Liability_Guide.pdf



Some key AR emergency management volunteer statutes:

ACA § 12-83-101-105, Emergency Volunteer Reserve Act of 1995

ACA § 12-85-101-103, Disaster Service Volunteer Leave Act

ACA § 12-87-101-115, Uniform Emergency Volunteer Health Practitioners Act

ACA § 21-5-609, Emergency Service Volunteer Workers Benefits

ACA § 16-6-103, Arkansas Volunteer Immunity Act

ACA § 17-95-101, Arkansas Good Samaritan Act



Volunteers sometimes have multiple affiliations

Some emergency volunteers continue to be paid by their employer during their volunteer service.

Many statutes that protect emergency volunteers limit that protection to uncompensated workers.

If an emergency volunteer is paid by his or her regular employer while participating in emergency activities, the volunteer may not qualify for liability protection.

Depending on state law and the degree of control the employer retains over the employee-volunteer during an emergency response, the employer may be responsible for workers’ compensation benefits if the employee is injured or killed and for liability to third parties arising from the employee’s actions.




Example of multi-affiliations in a Workers’ Comp Case:

Office of Emergency Services State of Ark., Division of Public Emp. Claims v. Home Ins. 2 Ark.App. 185, 618 S.W.2d 573 Ark.App., 1981.

Workers’ Comp Commission and Administrative Judge agreed deceased worked for county as volunteer fire fighter

AR Court of Appeals reversed. Held he worked for the city at the time of death.




Good Samaritans

A Good Samaritan is someone who, usually without obligation or compensation (i.e., voluntarily), provides assistance to a victim at the scene of an injury or sudden emergency where there is no ready access to professional care or assistance.

Good Samaritan laws reduce the barrier of liability by providing immunity from liability for ordinary negligence. Good Samaritans often act independently and may or may not be affiliated with an official organization.




Voluntary organizations and emergency volunteers managed by nongovernmental organizations

Nongovernmental organizations (business and nonprofit) have demonstrated that volunteerism in the emergency context extends far beyond unpaid individuals working at the scene of an emergency.

For example, a hospital may permit volunteer healthcare providers to provide disaster medical assistance at its facility.

A nonprofit organization may screen and train volunteers to respond in an emergency.

Businesses may donate supplies, equipment, and the time of their employees.

At present, these organizations and sometimes their workers and volunteers are not protected from liability for their emergency preparedness and response activities in most states, but efforts are underway to increase their protection.




Spontaneous volunteers

Emergency management and voluntary response organizations strongly encourage potential emergency volunteers to join response organizations before a disaster. Still, significant numbers of unaffiliated, untrained, and unscreened individuals may come to the scene of a disaster to offer help.

Without provisions to register them at the scene, these spontaneous or unaffiliated volunteers are unlikely to receive liability protection or injury benefits.




Volunteer Risk Management

Assessing your risks and ensuring that your volunteers are trained and apprised of the applicable laws saves you from: Increased problems at a disaster scene Liability and other legal and political headaches



+Volunteer Risk Management – use in training volunteers

If you assist someone, can you be sued?

It depends!

You can be sued, but under the Arkansas Good Samaritan Law and the Volunteer Immunity Act you would not likely be found liable.

Depending on ALL the circumstances.

Ordinary Negligence v. Gross Negligence v. Willful Misconduct




Think about a person lying on the side of the road

Ordinary Negligence – not using the proper degree of care a reasonable person would under the circumstances Example?

Gross Negligence - reckless, blatant inattention to another Example?

Willful Misconduct - intention to injure or utter, conscious disregard for another Example?

Why is distinguishing between these important??



Volunteer Liability

Ordinary negligence is what the volunteer laws seek to protect volunteers from liability for.

If charged with gross negligence, the injured party’s own negligence can lessen the liability of the volunteer.

However, with willful conduct, it would not matter if the injured party contributed to their own injuries negligently,

and willful conduct could make the volunteer liable for punitive (punishing) damages in addition to compensatory (actual) damages.



Liability scenarios

Let’s take a look at relevant AR laws (Every state is different – so check that state’s laws!)

AR Good Samaritan Act

AR Volunteer Immunity Act



AR Good Samaritan Act (focus on key buzz words in bold):

(a)Any health care professional under the laws of the State of Arkansas who in good faith lends emergency care or assistance without compensation at the place of an emergency or accident shall not be liable for any civil damages for acts or omissions performed in good faith so long as any act or omission resulting from the rendering of emergency assistance or services was not grossly negligent or willful misconduct.

(b) Any person who is not a health care professional who is present at an emergency or accident scene and who:

(1) Believe that the life, health, and safety of an injured person or a person who is under imminent threat of danger could be aided by reasonable and accessible emergency procedures under the circumstances existing at the scene thereof; and



(2) Proceeds to lend emergency assistance or service in a manner calculated in good faith (without fraud or deception) to lessen or remove the immediate threat to the life, health, or safety of such a person,

shall not be held liable in civil damages in any action in this state for any act or omission resulting from the rendering of emergency assistance or services unless the act or omission was not in good faith (fraudulent or deceptive) and was the result of gross negligence (reckless, blatant inattention to another) or willful misconduct (intention to injure or utter, conscious disregard for another)

Note: If charged with gross negligence, the injured party’s own negligence can lessen the liability of the volunteer. However, with willful conduct, it would not matter if the injured party contributed to their own injuries negligently, and willful conduct could make the volunteer liable for punitive (punishing) damages in addition to compensatory (actual) damages.



AR Volunteer Immunity Act – part one

§ 16-6-103 Definitions

As used in this subchapter, unless the context otherwise requires:

(1) "Qualified volunteer" means any person who, of free will, provides goods or services without financial compensation to or through any volunteer agency in connection with a volunteer program;

(2) "Volunteer agency" means any volunteer program of all departments, institutions, and divisions of state government, community volunteer organization, or any not-for-profit corporation which has received a 501(c)(3) designation from the United States Internal Revenue Service, other than one established principally for the recreational benefit of its stockholders or members;



(3) "Volunteer activity" means any activity within the scope of any project, program, effort, or other regular activity sponsored by a volunteer agency with the intent to effect a charitable purpose or confer other public benefit, including, but not limited to, enhancement of the cultural, civic, religious, educational, scientific, or economic resources of the community.

§ 16-6-104 Volunteer not vicariously liable – construction of subchapter

(a) A qualified volunteer shall not be held vicariously liable for the negligence of another in connection with or as a consequence of his or her volunteer activities.

(b) Nothing in this subchapter shall be construed to limit the liability of a person acting outside the scope of the volunteer program.

(c) Nothing in this subchapter shall be construed to limit the liability of any volunteer agency.



AR Volunteer Immunity Act - continued

§ 16-6-105 Nonliability for damages – Exceptions

A qualified volunteer shall not be liable in damages for personal injury or property damage sustained by one who is a participant in, or a recipient, consumer, or user of, the services or benefits of a volunteer by reason of any act or omission of a qualified volunteer in connection with the volunteer except as follows:

(1) Where the qualified volunteer is covered by a policy of insurance, in which case liability for ordinary negligence is limited to the amount of coverage provided;

(2) Where the qualified volunteer acts in bad faith or is guilty of gross negligence;



(3) Where the qualified volunteer negligently operates a motor vehicle, aircraft, boat, or other powered mode of conveyance. If the actionable conduct of the qualified volunteer is covered by a policy of liability insurance, his liability for ordinary negligence shall be limited to the amount of the coverage provided;

(4) Where the qualified volunteer negligently performs professional services extended to an individual, which the qualified volunteer is licensed under state law to perform, including, but not limited to, legal, engineering, and accounting services. If the volunteer agency either provides or requires its professional volunteers to carry professional liability insurance in an amount customarily carried by a member of the profession involved liability for ordinary negligence in rendering professional service shall be limited to the amount of coverage available or the amount required by the agency, whichever is larger. This exception does not apply to nurses or similar health care providers rendering health care services or other professionals rendering professional services to a government entity, business, or volunteer agency.



Do volunteers pay court costs if they are sued?

Up front, yes. Then the Judge can order the losing party in the case to pay the winner’s court costs.

What about attorney’s fees?


+Medical Profession

Question:

A group of medical professionals who practice in a state that borders a state which is facing an impending disaster. The disaster will undoubtedly lead to a call for medical help from surrounding states. These medical professionals are ready and willing to help. They have asked you to point out the legal implications they may face as a result of providing assistance in this situation.


+Medical Profession In talking to these medical professionals you would

want to address:

Emergency Management Assistance Compact (EMAC) and its lack of protecting them if they are not employees of the state. Nor does it address issues of privilege.

Model State Emergency Health Powers Act (MSEHPA): Regardless of any of its faults, it also allows for the public health authority to put aside all license requirements, permits, and fees, for health care providers out of their state jurisdiction. This is for cutting through the bureaucracy red tape, thus getting more help to the people faster, and getting relief to the instate workers.”

NIMS certification – nationwide credentialing

Let them know that the requesting state may be responsible to them for any workers’ compensation claims should they be injured

Source: Abbott, E., & Hetzel, O. (2005). A Legal Guide to Homeland Security and Emergency Management for State and Local Governments, Chicago, IL: ABA Publishing.


+Medical Profession In talking to these medical professionals you would want to address:

It is very important to know that any type of volunteer protection law normally does not apply if the responder, including medical professionals, are within the scope of their employment (meaning they have a preexisting duty to the patient) - it most often hinges on whether they are being compensated when they assist.

If any of these health professional volunteers are licensed professionals, they would not be exempt under the Volunteer Immunity Act due to their insurance coverage. Note, this includes other licensed professionals in additional to health professionals.

A licenses professional who wants to volunteer unpaid as an individual so that they would be covered under the Good Samaritan Law.

The need to consider possible immunities from med. malpractice in emergencies

Consider Med. Mal insurance coverage limitations (such as location issues)

“Duty” waived in some emergency situations

Realize there may be administrative penalties for negligence even if not legally liable otherwise

Indemnification considerations

And last but not least, it will be important to look closely at the requesting state for all of these issues and other potential conflicting laws.

Source: Abbott, E., & Hetzel, O. (2005). A Legal Guide to Homeland Security and Emergency Management for State and Local Governments, Chicago, IL: ABA Publishing.


+Arkansas Lawsregarding Secondary Schools

ACA § 6-15-1301, directed the department of Education to create a “Safe Schools Committee” to make recommendations regarding emergency planning and policies to school districts.

ACA § 6-15-1302 was passed, which requires that all school districts shall develop plans for school safety in the even of a terrorist attack.

ACA § 6-15-1005 states that schools have safe and functional facilities.

ACA § 6-10-121 School districts are required to implement emergency management plans for natural disasters.


+Arkansas Lawsregarding Secondary Schools

ACA § 6-15-1302 was passed, which requires that all school districts shall develop plans for school safety in the even of a terrorist attack.

A Pediatric Medical Journal did a sample survey in AR in 2003 regarding planning for a Mass Casualty Incident (MCI) in AR schools.

Survey revealed 51% of Arkansas schools reported no having a written plan for a mass causality or terrorist event.

Source: http://www.redorbit.com/news/education/262422/planning_for_a_mass_casualty_incident_in_arkansas_schools/


+Questions?

Contact Information:Beth Wilson GrayAssistant ProfessorDepartment of Emergency ManagementArkansas Tech University402 West "O" StreetDean Hall, #110Russellville, AR 72801

[email protected] 479-356-2091 fax


+ how a lack of emergency preparedness could have you singing the liability blues. beth gray,...

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