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Striking a Balance: An Open Courts Analysis of the Uniform Emergency Volunteer Health Practitioners Act

Significant public health emergencies and disasters in the beginning of the twenty-first century initiated an emergency preparedness movement. The devastation wrought by the 2005 hurricane season, accompanied by the threat of a biological attack or an influenza pandemic, prompted the passage of model laws to facilitate rapid and effective responses to emergencies. In 2007, the National Conference of Commissioners on Uniform State Laws passed the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA). The UEVHPA is a piece of model legislation designed to unify the disparate state procedures used to authorize and regulate the deployment of volunteer health practitioners (VHPs) in response to public health emergencies and disasters. In order to encourage volunteerism among health practitioners, Section 11 of the UEVHPA protects VHPs from civil liability arising from their negligence. In so doing, it eliminates negligently-injured victims' means of recovery. Accordingly, Section 11 conflicts with open courts provisions found in many state constitutions. These provisions typically guarantee that injured persons have a right to seek redress through the state's legal system. This Note begins with an overview of the public health emergency preparedness movement, Section 11 of the UEVHPA, and open courts provisions. It then sets forth the conflict between Section 11 and open courts provisions. This Note analyzes Section 11 under the most common open courts tests and demonstrates that some enacting state legislatures will need to modify Section 11 in order for the UEVHPA to survive constitutional challenges. Next, it sets forth three alternatives that may be adopted by states in lieu of the options posed by Section 11. Ultimately, this Note argues that, given the unique public health and legal concerns surrounding public health emergencies, a state agreement to assume liability for the negligence of VHPs strikes the optimal balance between the needs of VHPs and the needs of negligently-injured victims.