Convergent volunteers who come forward to assist during an emergency or disaster can become registered as a DSW for a single event. Those convergent volunteers not registered as DSW workers have limited liability protection from the “Good Samaritan Laws”. Convergent volunteers are not covered to the extent of DSW volunteers and do not receive workers’ compensations benefits through the DSW program.
The Medical Reserve Corps volunteers are protected from liability in varying degrees by state and federal laws.
The state and federal laws described below may not be the only laws addressing liability protection for volunteers.
FEDERAL LAW:
US Volunteer Protection Act of 1997 (42 U.S.C. $14501 - $14505) - The Federal Volunteer Protection Act provides qualified immunity for liability for volunteers and, subject to exceptions, preempts inconsistent state laws on the subject, except for those that provide protections stronger than those contained in the Volunteer Protection Act. Under the Volunteer Protection Act, a volunteer of a nonprofit organization or governmental entity is immune from liability for harm caused by an act or omission of the volunteer on behalf of the organization or entity if:
a. The act or omission was within the scope of the volunteer’s responsibilities in the organization or entity.
b. If required, the volunteer was properly licensed, certified or authorized by the appropriate state authorities
for the activities or practice giving rise to the claim.
c. The harm was not caused by “willful or criminal misconduct, gross negligence, reckless misconduct or a
conscious flagrant indifference to the rights or safety of the individual harmed by the volunteer.”
d. The harm was not caused by the volunteer’s operation of a motor vehicle, vessel, aircraft or other vehicle
for which the state requires the operator to possess a license or maintain insurance.
CALIFORNIA LAW:
Calif. Government Code $8657 - "Emergency Services Act" - A California law with stronger protection for volunteers in the Disaster Service Worker (DSW) Program. This provides a limited immunity from liability for volunteers who are registered as Disaster Service Workers while providing care during a disaster. It also provides workers compensation. "Volunteers duly enrolled or registered with the Office of Emergency Services or any disaster council of any political suvbdivision, or unregistered persons duly impressed into service during a state of war emergency, a state of emergency, or a local emergency, in carrying out, complying with, or attempting to comply with, any order or regulation issued or promulgated pursuant to the provisions of this chapter or any other local ordinance, or performing any of their authorized functions or duties or training for the performance of their authorized functions or duties, shall have the same degree or responsibility for their actions and enjoy the same immunities as officers and employees of the state and its political subdivisions performing similar work for their respective entities. "
Calif. Code of Regulation Title 19 §§2570-2573.3 - "California Disaster Service Worker Volunteer Program"
This law provides workers’ compensation insurance coverage in the event a Disaster Service Worker volunteer is injured while performing assigned disaster duties. In order to qualify for the DSW Program, all volunteers must register with an accredited Disaster Council, The Governor’s Office of Emergency Service (OES), or an authorized State Agency. The DSW Program also provides volunteers assigned to disaster duties limited immunity from liability in the course of their disaster service duties.
Calif. Government Code §8623 or § 8660 - "Persons from other states holding licenses or certificates or other permits from those states for professional, etc. skills may render aide in an emergency as fully as if license, etc., was conferred in California".
Calif. Government Code $8659 - Malpractice protection; "Any physician or surgeon (whether licensed in this state or any other state), hospital, pharmacist, nurse, or dentist who renders services during any state of war emergency, a state of emergency, or a local emergency at the express or implied request of any responsible state or local official or agency shall have no liability for any injury sustained by any person by reason of such services, regardless of how or under what circumstances or by what cause such injuries are sustained; provided, however, that the immunity herein granted shall not apply in the event of a willful act or omission."
Calif. Labor Code $3211.92(b) and CCR Title 19 $2572.2(3)(b)(1) as well as the above DSW Program provides protection even during training for disasters.
Calif. Business & Professions Code §§920-922 - Healthcare Professional Disaster Response Act
Calif. Bus & Prof Code $3502.5 - A physician's assistant may perform medical services he or she is permitted to perform during emergency at the request of a responsible federal, state or local official or agency or pursuant to the terms of a mutual aid operation plan established and approved pursuant to the California Emergency Services Act, regardless of whether the supervising physician is available to supervise, as long as any licensed physician is available to provide supervision
A key word is "licensed." At this point in CA, no unlicensed person is allowed to provide services that normally require a license. The governor is always able to suspend public law in emergencies so that may of course be done, but we (CA DHS & CA EMSA) are trying to get legislation that addresses this issue ahead of time. This would ease the mind of some clinicians who let their licenses expire but still want to help in an emergency.
Health and Safety Code §101040 & §101475 - “Health Officer may take any preventive measure……….”
Definition - "Disaster Service Worker (DSW) Volunteer"
Registered DSWs: A disaster service worker volunteer is "...any person registered with an accredited Disaster Council. ..for the purpose of engaging in disaster service ... without pay or other consideration." Registered DSW volunteers are persons who have chosen to volunteer their time to assist a disaster or emergency services agency in carrying out the responsibilities of that agency. The person must be officially registered with the accredited Disaster Council; and, not receive any pay, monetary or otherwise, for the service being provided.
Immunity from liability protects the political subdivision or political entity, and the DSW volunteer in any civil litigation resulting from acts of good faith made by the political subdivision or political entity, or the DSW volunteer, while providing disaster service (e.g., damage or destruction of property; injury or death of an individual). Immunity from liability does not apply in cases of willful intent, unreasonable acts beyond the scope of DSW training, or if a criminal act is committed.
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