Overcoming legal obstacles involving the voluntary care of children who are separated from their legal guardians during a disaster

Abstract

A large-scale disaster may separate children from their parents or guardians and may strand many children in the care of temporary caregivers, including physicians and nurses. In general, unless a physician or nurse is a member of a public sector emergency response program (a "VHP"), parental consent is required for the treatment of minors outside of an emergency department unless the minor is suffering from an imminently life-threatening condition. Physicians or nurses who are not VHP's may be held liable (civilly, criminally and administratively) if they provide care without parental consent outside of an emergency room to a child who is not suffering from an imminently life-threatening condition. The existing rules regarding parental consent would, in many cases, limit (or at least discourage) the provision of optimal health care to children in a large-scale disaster by restricting care aimed to alleviate pain, the treatment of chronic conditions as well as the treatment of conditions, or potential conditions, that could worsen or develop in the absence of treatment.Additionally, "Good Samaritan" laws that generally limit the liability of health care providers who voluntarily provide care in an emergency may not apply when care is provided in a crude or makeshift clinic or when care is not provided at the scene of the emergency. Thus, benevolent physicians and nurses who voluntarily provide care during a large-scale disaster unjustly risk liability. The prospect of such liability may substantially deter the provision of optimal medical care to children in a disaster. This article discusses the shortcomings of current laws and proposes revisions to existing state laws. These revisions would create reasonable and appropriate liability rules for physicians and nurses providing gratuitous care in emergencies and thus would create reasonable incentives for health care providers to deliver such care. ("Gratuitous care" is the legal term for care provided voluntarily and without expectation of payment.).