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Mike
Gerardi: Opinion
(In response to the suggestion that
the government has relieved the healthcare community from
liability by Section 304 of the Homeland Security Act)
Attorneys for our health care system and I have a different
opinion. I don't know the right answer for sure but as an
ACEP Councilor, I am certainly entitled to an opinion and
have a right to burden you with it since you asked for it!
I received a document this weekend that was issued from
the NJ Hosp Association in response to Secretary
Thompson's letter last week and I
have attached it for your review. The critical portion
is this:
"In addition, the Secretary's declaration may determine
that hospitals that designate employees to receive smallpox
countermeasures under a state's smallpox plan are considered
to be participants in the program and thus are healthcare
entities under whose auspices the countermeasure is administered.
In these circumstances, we believe that hospitals or other
institutions that employ these vaccinees but that do not
operate as a clinic administering countermeasures would
be covered by Section 304 protections for claims arising
out of the administration of a countermeasure."
This sounds like you are relieved of liability correct?
Wrong and for the following reasons: 1. "designate"
in first sentence: What does this mean when it is a "voluntary"
program? Do they mean those whose names they submit for
the vaccine? If so, then they should say so because 'designate'
coudo be interpreted to mean 'assigned'.
2. "employee" in first sentence: Once again,
many of us are not employees.
3. "We believe" - need I say more? Do you trust
a "We believe" in these litigious times?
The document goes on to talk about:
Scope of Protection for Healthcare WorkersQualified Persons
<<"Qualified persons," as noted above,
are licensed health professionals or other individuals authorized
to administer smallpox countermeasures under state law.
Section 304 claims may be filed for injuries due to administration
of countermeasures only if a qualified person administers
the countermeasure.>>
4. "Administration" is the key word; little protection
mentioned for "vaccinees". Hospitals, for the
most part, are not administering the vaccine
- in NJ, anyway.
The document from the AHA goes on to satte: <<Qualified
persons are generally covered by Section 304's protections
for claims arising out of the administration of a countermeasure
that occur within the scope of the qualified person's employment.
Transmission of vaccinia, for example, from a vaccinated
healthcare worker to a household contact would not be covered
by Section 304's protections because the transmission occurred
outside the scope of the healthcare worker's employment.
In addition, Section 304's protections cover individuals
who are officials, agents, and employees of entities listed
in the Who is Protected section, above.>>
I hope they resolve these issues soon so we can get on
with it.
Thanks.
Mike Gerardi, MD
New Jersey
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