Beyond the call of duty: Compelling health care professionals to work during an influenza pandemic

Iowa Law Review

Volumn 94, Issue 1, 2008, Pages 1-47

  Coleman, Carl H ^a  

^a Center for Health and Pharmaceutical Law and Policy

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EID: 59749091686     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (309)

1. R.J. Webby & R.G. Webster, Are We Ready for Pandemic Influenza?, 302 SCI. 1519, 1519 (2003).
2. See infra Part I.B (discussing the likely impact of a pandemic on health care professionals).
3. MODEL STATE EMERGENCY HEALTH POWERS ACT (Ctr. for Law & the Public's Health, Georgetown & Johns Hopkins Uniys., Discussion Draft 2001), available at http://www.public healthlaw.net/MSEHPA/MSEHPA2.pdf.
4. See infra notes 129-37 and accompanying text (discussing the MSEHPA and state laws based on it).
5. See infra note 130 and accompanying text.
6. See infra note 137 and accompanying text.
7. See infra notes 67-68 and accompanying text (noting the positions of the American Medical Association and the World Medical Association).
8. See infra Part III A.
9. See infra Part III.A.1.
10. See infra Part III.A.2.
11. See infra Part III.A.3.
12. See infra Part III.A.1.
13. See infra Part III.A.2.
14. See infra Part III.A.3.
15. See infra Part III.A.3.
16. See infra Part III.B.
17. See United States Department of Health and Human Services, Glossary, http:// pandemicflu.gov/glossary/index.html#P (last visited Sept. 22, 2008).
18. See John G. Bartlett, Planning for Avian Influenza, 145 ANNALS INTERNAL MED. 141, 141 (2006) (noting that pandemic influenza historically has occurred at intervals of eleven to fortytwo years and that influenza experts have consistently warned that another pandemic is inevitable).
19. See Jeffery K. Taubenberger & David M. Morens, 1918 Influenza: The Mother of All Pandemics, 12 EMERGING INFECTIOUS DISEASES 15, 15 (2006) ("Total deaths were estimated at [approximately] 50 million and were arguably as high as 100 million." (citations omitted)).
20. N. Pieter M. O'Leary, Cock-a-Doodle-Doo: Pandemic Avian Influenza and the Legal Preparation and Consequences of an H5N1 Influenza Outbreak, 16 HEALTH MATRIX 511, 520 (2006).
21. World Health Org., Ten Things You Need to Know About Pandemic Influenza (Oct. 14, 2005), http://www.who.int/csr/disease/influenza/pandemic10things/en/.
22. World Health Org., Avian Influenza Frequently Asked Questions (Dec. 5, 2005), http://www.who.int/csr/disease/avian-influenza/avian-faqs/en/index.html.
23. World Health Org., Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1) Reported to WHO (Mar. 5, 2008), http://www.who.int/csr/ disease/ avian-influenza/country/cases-table-2008-03-05/en/index.html.
24. Writing Comm. of the Second World Health Org. Consultation on Clinical Aspects of Human Infection with Avian Influenza A (H5N1) Virus, Update on Avian Influenza A (H5N1) Virus Infection in Humans, 358 NEW ENG. J.MED. 261, 261 (2008) [hereinafter WHO, Update].
25. See Dennis Normile, Pandemic Skeptics Warn Against Crying WoIf 310 SCI. 1112, 1112 (2005).
26. World Health Org., supra note 22.
27. Vickie J. Williams, Fluconomics: Preserving Our Hospital Infrastructure During and After a Pandemic, 7 YALE J. HEALTH POL'Y L. & ETHICS 99, 100 (2007);
28. see also Jeffery K. Taubenberger et al., The Next Influenza Pandemic: Can It Be Predicted?, 297 JAMA 2025, 2026 (2007) ("It is currently impossible to predict the emergence of a future pandemic other than to strongly suspect that one will eventually occur . . . .").
29. World Health Org., supra note 22.
30. Christopher J.L. Murray et al., Estimation of Potential Global Pandemic Influenza Mortality on the Basis of Vital Registry Data from the 1918-20 Pandemic: A Quantitative Analysis, 368 LANCET 2211, 2214 (2006).
31. See Hillary R. Ahle, Anticipating Pandemic Avian Influenza: Why the Federal and State Preparedness Plans Are for the Birds, 10 DEPAUL J. HEALTH CARE L. 213, 221 (2007) (exploring why current preparedness plans leave the world vulnerable to mass death in the event of a flu epidemic);
32. see also Michael T. Osterholm, Preparing for the Next Pandemic, 84 FOREIGN AFF. 24, 24-26 (2005) (suggesting that a pandemic similar to the Spanish flu could result in 180 million to 360 million deaths worldwide, which would be "more than five times the cumulative number of documented AIDS deaths");
33. Taubenberger & Morens, supra note 19, at 21 ("Even with modern antiviral and antibacterial drugs, vaccines, and prevention knowledge, the return of a pandemic virus equivalent in pathogenicity to the virus of 1918 would likely kill [more than] 100 million people worldwide.").
34. United States Department of Health and Human Services, Pandemic Planning Assumptions, http://pandemicflu.gov/plan/pandplan.html (last visited Sept. 22, 2008).
35. WHO, Update, supra note 24, at 262.
36. Id. at 261-62. Some experts caution that estimates of extremely high mortality rates for H5N1 may be misleading, as individuals with mild cases of the virus may not have sought medical care.
37. See N.Y. STATE TASK FORCE ON LIFE & THE LAW, N.Y. STATE DEP'T OF HEALTH, ALLOCATION OF VENTILATORS IN AN INFLUENZA PANDEMIC: PLANNING DOCUMENT 8 (draft for public comment 2007), http://www.health.state.ny.us/diseases/ communicable/influenza/ pandemic/ventilators/docs/ven tilator-guidance.pdf.
38. Taubenberger & Morens, supra note 19, at 15.
39. See WHO, Update, supra note 24, at 261-62.
40. See Williams, supra note 27, at 111 (explaining that if a pandemic occurred, hospitals would be completely overwhelmed).
41. See Laura D. Hermer, The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & POL'Y 695, 716-17 (2006) ("Ninety percent of our larger hospitals have saturated their capacity for treating patients, primarily because of the lack of inpatient critical care beds and the nurses to staff them.").
42. It has been estimated that "25 states would run out of hospital beds within 2 weeks of a moderate pandemic flu outbreak." Tracy Hampton, Pandemic Flu Planning Falls Short: Many Vulnerabilities in Health Care System, 297 JAMA 1177, 1178 (2007).
43. See, e.g., Stephen Spotswood, Health Care Worker Shortage a Global Phenomenon, U.S. MED., Mar. 2006, available at http://www.usmedicine.com/article.cfm?articleID=1280&issueID= 85 (describing the shortage of nurses).
44. According to a July 2007 American Hospital Association report, hospitals had an estimated 116,000 nursing vacancies, which translated into a national nurse vacancy rate of over eight percent. AM. ASS'N OF COLLS. OF NURSING, NURSING SHORTAGE FACT SHEET 1 (2008), available at http://www.aacn.nche. edu/Media/pdf/NrsgShortageFS.pdf.
45. See Hampton, supra note 38, at 1178 ("Staff shortages may be exacerbated by the likely event that more health care professionals than workers in the general public will fall ill.").
46. See James G. Hodge, Jr. et al., The Legal Framework for Meeting Surge Capacity Through the Use of Volunteer Health Professionals During Public Health Emergencies and Other Disasters, 22 J. CONTEMP. HEALTH L. & POL'Y 5, 7-8 (2005) (describing the need for volunteer health professionals in emergency situations).
47. COMM. ON PERS. PROTECTIVE EQUIP, FOR HEALTHCARE WORKERS DURING AN INFLUENZA PANDEMIC, INST, OF MED. OF THE NAT'L ACADS., PREPARING FOR AN INFLUENZA PANDEMIC: PERSONAL PROTECTIVE EQUIPMENT FOR HEALTHCARE WORKERS 61 (Lewis R. Goldfrank & Catharyn T. Liverman eds., 2008) [hereinafter PERSONAL PROTECTLVE EQUIPMENT].
48. Id. at 62-63.
49. Id. at 61.
50. World Health Org., supra note 22;
51. see also Y. Guan et al., A Model to Control the Epidemic of H5N1 Influenza at the Source, BMC INFECTIOUS DISEASES, Nov. 13, 2007, http://www.bio medcentral.com/content/pdf/1471-2334-7-132.pdf ("[A]t most only a third of the global human population may have the chance of getting the vaccine at least six months after the pandemic strain is identified.").
52. WORLD HEALTH ORG., WHO GUIDELINES FOR THE GLOBAL SURVEILLANCE OF SEVERE ACUTE RESPIRATORY SYNDROME (SARS) 6 (2004), available at http://www.who.int/csr/ resources/publications/WHO-CDS-CSR-ARO-2004-1.pdf.
53. WORLD HEALTH ORG., CONSENSUS DOCUMENT ON THE EPIDEMIOLOGY OF SEVERE ACUTE RESPIRATORY SYNDROME (SARS) 14 (2003), available at http://www.who.int/csr/sars/en/WHO consensus.pdf;
54. see also Ezekiel J. Emanuel, The Lessons of SARS, 139 ANNALS INTERNAL MED. 589, 590 (2003) ("More than half of the first 60 reported cases of SARS involved health care workers who had come into contact with SARS patients.").
55. See WORLD HEALTH ORG., supra note 47, at 19.
56. Samuel J. Huber & Matthew K. Wynia, When Pestilence Prevails . . . Physician Responsibilities in Epidemics, AM. J. BIOETHICS, Winter 2004, at W5, W5, available at http://www. bioethics.net/journal/pdf/4-1-IF-w05-Huber.pdf.
57. Id. at W6;
58. see also Darrel W. Amundsen, Medical Deontology and Pestilential Disease in the Late Middle Ages, J. HLST. MED. & ALLIED SCI. 403, 404 (1977) ("For every account ... of a physician hiding in terror, . . . there are descriptions ... of physicians trying desperately to help their patients . . . .");
59. Daniel M. Fox, The Politics of Physicians' Responsibility in Epidemics: A Note on History, HASTINGS CENTER REP. (SPECIAL SUPPLEMENT), Apr.-May 1988, at 5, 5 (noting physicians' differing responses to epidemics throughout history).
60. John D. Arras, The Fragile Web of Responsibility: AIDS and the Duty to Treat, HASTINGS CENTER REP. (SPECIAL SUPPLEMENT), Apr.-May 1988, at 10,13.
61. See Fox, supra note 50, at 6 (noting that, in response to plagues, "[p]hysicians were forbidden to leave some cities and their hinterlands").
62. See Abigail Zuger & Steven H. Miles, Physicians, AIDS, and Occupational Risk: Historic Traditions and Ethical Obligations, 258 JAMA 1924, 1924 (1987) (concluding that "the dominant impression that this diverse group left among its contemporaries was not one of heroism").
63. Arras, supra note 51, at 14.
64. Huber & Wynia, supra note 49, at W6 (alteration in original)
65. (quoting THE AMERICAN MEDICAL ETHICS REVOLUTION: HOW THE AMA's CODE OF ETHICS HAS TRANSFORMED PHYSICIANS' RELATIONSHIPS TO PATIENTS, PROFESSIONALS, AND SOCIETY 333 (Robert B. Baker et al. eds., 1999)).
66. See id. at W7.
67. Id.
68. Id.
69. See id. (noting that "concerns about government and corporate intrusions into the medical practice," as well as the fact that "the era of massive epidemics was perceived to be ending," were "major factors [that] led to a waning acceptance of the duty to treat . . . contagious patients").
70. See Molly Cooke, Physician Risk and Responsibility in the HIVEpidemic, 152 W.J. MED. 57, 59 (1990) (noting that the chief of orthopedic surgery at a San Francisco hospital maintained "that the care of HIV-infected persons is extremely dangerous and that physicians should not be required to provide it");
71. Norman Daniels, Duty to Treat or Right to Refuse?, HASTINGS CENTER REP., Mar.-Apr. 1991, at 36, 36 ("[T]he National Commission on AIDS complained that 'a shocking number of physicians are reluctant to take care of people living with HIV infection and AIDS.'");
72. Jennifer O'Flaherty, The AIDS Patient: A Historical Perspective on the Physician's Obligation to Treat, PHAROS, Summer 1991, at 13, 13 (quoting one physician as stating that "'exposing] myself to that risk at this point in my life when I'm responsible for a newborn child is something I don't want to do'").
73. Benjamin Freedman, Health Professions, Codes, and the Right to Refuse to Treat HTVInfectious Patients, HASTINGS CENTER REP. (SPECIAL SUPPLEMENT), Apr.-May 1988, at 20, 22.
74. See Huber & Wynia, supra note 49, at W8 (noting that the AMA position "was widely ridiculed").
75. COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 9.131 (2008) [hereinafter AMA CODE OF ETHICS] .
76. See Huber & Wynia, supra note 49, at W8 ("[Professional consensus emerged around non-discrimination as the fundamental basis on which to support a duty to treat HIV-infected patients." (citations omitted) ).
77. See Ctrs. for Disease Control & Prevention, U.S. Dep't of Health & Human Servs., Are Health Care Workers at Risk of Getting HIV on the Job?, http://www.cdc.gov/hiv/resources/ qa/qa28.htm (last visited Sept. 23, 2008) ("The risk of health care workers being exposed to HIV on the job is very low, especially if they carefully follow universal precautions (i.e., using protective practices and personal protective equipment to prevent HIV and other blood-borne infections).").
78. See Huber & Wynia, supra note 49, at W8 (relying in part on the low risk of HTV transmission to conclude that "the profession largely avoided re-endorsing a broad duty to treat during epidemics").
79. AMA CODE OF ETHICS, supra note 63, § 9.067. The AMA's Council on Ethical and Judicial Affairs has clarified that physicians' obligation to assume risk is not unlimited.
80. See Karine Morin et al., Physician Obligation in Disaster Preparedness and Response, 15 CAMBRIDGE Q. HEALTHCARE ETHICS 417, 420 (2006) (stating, on behalf of the Council of Ethical and Judicial Affairs, that " [p] hysicians should not be expected to place themselves at greater risk than the benefit they can provide").
81. See, e.g., WORLD MED. ASS'N, STATEMENT ON AVIAN AND PANDEMIC INFLUENZA § 11 (h) (2006), available at http://www.wma.net/e/policy/a28.htm ("Physicians have an ethical responsibility to provide services to the injured or ill. They should have resources in place in the event they and/or their own families become infected."). Some medical associations have remained silent on the expectations of physicians in disaster situations.
82. See Carly Ruderman et al., On Pandemics and the Duty to Care: Whose Duty? Who Cares?, BMC MED. ETHICS, Apr. 20, 2006, http://www.biomedcentral.com/content/pdf/1472-6939-7-5.pdf (noting that the Canadian Medical Association's revised Code of Ethics, released in 2004, "is, quite astoundingly, altogether silent on physicians' duty to care").
83. COMM. ON ETHICS, AM. NURSES ASS'N, RISK AND RESPONSIBILITY IN PROVIDING NURSING CARE (rev. position statement 2006) (on file with the Iowa Law Review).
84. Id.
85. Id.
86. See Infection Control Update: Who Will Come to Work in a Pandemic?, HEALTHCARE PURCHASING NEWS, Jan. 2007, at 36, 36.
87. K. Qureshi et al., Health Care Workers' Ability and Willingness to Report to Duty During Catastrophic Disasters, 82 J. URB. HEALTH 378, 383 (2005).
88. See, e.g., Niklas Mackler et al., Will First-Responders Show Up for Work During a Pandemic? Lessons from a Smallpox Vaccination Survey of Paramedics, 5 DISASTER MGMT. & RESPONSE 45, 46 tbl.l (2007) (finding that only thirty-nine percent of paramedics would remain on duty during a smallpox pandemic if no vaccine were available);
89. R.D. Balicer et al., Local Public Health Professionals' Perceptions Toward Responding to an Influenza Pandemic, BMC PUB. HEALTH, Apr. 18, 2006, http://www.biomedcentral.com/content/pdf/1471- 2458-6-99.pdf (finding that nearly half of local health department workers in Maryland would not report to work during a pandemic);
90. Boris P. Ehrenstein et al., Influenza Pandemic and Professional Duty: Family or Patients First? A Survey of Hospital Employees, BMC PUB. HEALTH, Dec. 28, 2006, http://www.biomed central.com/content/pdf/1471- 2458-6-311.pdf (reporting that twenty-eight percent of employees at a university hospital in Germany agreed that it would be acceptable for health care professionals to abandon their workplaces during a pandemic).
91. Kenneth V. Iserson et al., Fight or Flight: The Ethics of Emergency Physician Disaster Response, 51 ANNALS EMERGENCY MED. 345, 346 (2008).
92. MARK A. ROTHSTEIN ET AL., INST, FOR BIOETHICS, HEALTH POLICY & LAW, UNLV. OF LOUISVILLE SCH. OF MED., QUARANTINE AND ISOLATION: LESSONS LEARNED FROM SARS 103 (2003), available at http://louisville.edu/ bioethics/public-health/SARS.pdf;
93. see also Lawrence K. Alunan, Asian Medics Stay Home, Imperiling Respirator Patients, N.Y. TIMES, Mar. 21, 2003, at A6 (reporting that some hospitals in Vietnam and Hong Kong were operating with half their normal staff).
94. Ruderman et al., supra note 68.
95. See 29 U.S.C. §§ 2611(4)(A)(i), 2612(a)(1)(C), (c) (2000). Some states have statutes requiring employers to give workers paid leave for family care.
96. See, e.g., CAL. UNEMP. INS. CODE § 3301(a)(1) (West Supp. 2008).
97. Labor laws provide the minimum floor of protections for all employees. Some employees may be entitled to broader protections than those described in the text as a result of collective-bargaining agreements negotiated with particular employers.
98. 29 C.F.R. § 1977.12(b)(2) (2007);
99. see also Whirlpool Corp. v. Marshall, 445 U.S. 1, 22 (1980) (upholding the regulation as a valid exercise of the Secretary of Labor's authority under the Occupational Safety and Health Act).
100. 29 U.S.C. § 157 (2000) (establishing workers' right to engage in concerted activity for "mutual aid or protection");
101. see also NLRB v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962) (holding that employees' refusal to work in an inadequately heated plant was protected concerted activity). The NLRA applies only to collective action; as such, if an individual employee who is not protected by a union refuses to work, she will not be able to invoke the NLRA's protections.
102. See, e.g., Prill v. NLRB, 835 F.2d 1481, 1482-85 (D.C. Cir. 1987)
103. (affirming the NLRB's definition of "concerted activity," which requires that the action be "'engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself" (quoting Meyers Indus., Inc., 268 N.L.R.B. 493, 497(1984))).
104. 29 U.S.C. § 158(g) (2000).
105. Id. § 143.
106. Id. § 152(2).
107. See, e.g., OHIO REV. CODE ANN. § 4167.06(A) (West 2007).
108. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 8 (1980) (recognizing that the Department of Labor's refusal-to-work regulations were designed as a mechanism for enforcing employers' requirements under the Occupational Health and Safety Act);
109. Michael H. LeRoy, From Docks to Doctor Offices After 9/11: Refusing to Work Under "Abnormally Dangerous Conditions, "56 ADMIN. L. REV. 585, 637 (2004) (explaining that a Department of Labor refusal-to-work regulation "aids in the enforcement of the OSHA's safety duties").
110. See, e.g., Whirlpool Corp., 445 U.S. at 607 (involving employees who were ordered to walk on a mesh screen suspended twenty feet from the floor, through which another worker had recently fallen to his death);
111. TNS, Inc., 329 N.L.R.B. 602, 609 (1999) (involving allegations that workers in a uranium plant were exposed to radiation in amounts "far greater than those typical for the nuclear industry").
112. See PERSONAL PROTECTIVE EQUIPMENT, supra note 42, at 2 (emphasizing the importance of personal protective equipment-including "respirators, gowns, gloves, face shields, [and] eye protection"-during a pandemic).
113. See, e.g., 29 U.S.C. § 143 (2000) ("[T]he quitting of labor . . . because of abnormally dangerous conditions . . . [shall not] be deemed a strike . . . .");
114. OHIO REV. CODE ANN. § 4167.06(A) (West 2007) (protecting public employees' right to refuse to work only if "such conditions are not such as normally exist for or reasonably might be expected to occur in the occupation of the public employee"). The Department of Labor's refusal-to-work regulations, however, do not contain a requirement that the imminent danger be "abnormal."
115. See Marshall v. Daniel Constr. Co., 563 F.2d 707, 722 n.16 (5th Cir. 1977).
116. See LeRoy, supra note 86, at 640 ("Section 502 does not allow professionals in a highrisk job to pick and choose when to work. This decision is reserved for rare and extreme situations that transcend ordinary occupational risk.").
117. See id. at 625 (concluding that if a court interpreted "abnormally dangerous" based on the "risks inherent in accident scenes worked by paramedics," there would be "few if any dangerous employment settings" in which paramedics would qualify for protection).
118. The foreseeability standard is explicitly recognized in the Ohio public-employee statute, which provides that employees are not entitled to refuse to work under conditions that "reasonably might be expected to occur." OHIO REV. CODE ANN. § 4167.06(A).
119. As one recent article noted: Infectious disease risks are an unavoidable result of caring for patients in emergency medicine because many of those infected do not manifest typical signs or symptoms of their diseases. More than 15 types of airborne infections have been transmitted to health care workers, including tuberculosis, varicella, measles, influenza, and respiratory syncytial virus. These cause significant morbidity and occasional mortality. Iserson et al., supra note 75, at 346.
120. See, e.g., Banyard v. NLRB, 505 F.2d 342, 348 (D.C. Cir. 1974) (refusing to apply a "safe-in-fact" standard).
121. See, e.g., Goodyear Tire & Rubber Co. v. Cunningham, 269 N.L.R.B. 881, 881 (1984) ("Section 502 applies only where it has been objectively established that the working conditions are abnormally dangerous.");
122. see also Gateway Coal v. United Mine Workers, 414 U.S. 368, 386 (1974) (dictum) (arguing for the necessity of objective evidence "that such conditions actually obtain").
123. See supra notes 42-48 and accompanying text.
124. Most physicians who are affiliated with hospitals do not work as employees. James A. Brickley & R. Lawrence Van Horn, Managerial Incentives in Nonprofit Organizations: Evidence from Hospitals, 45 J.L. & ECON. 227, 231 (2002). In some states, hospitals are not permitted to hire physicians as employees because of prohibitions on the "corporate practice of medicine."
125. Nicole Huberfeld, Be Not Afraid of Change: Time to Eliminate the Corporate Practice of Medicine Doctrine, 14 HEALTH MATRIX 243, 253 (2004).
126. See Handicapped Children's Educ. Bd. v. Lukaszewski, 332 N.W.2d 774, 777 (Wis. 1983).
127. See supra note 93 and accompanying text.
128. See, e.g., Ricks v. Budge, 64 P.2d 208, 211-12 (Utah 1937);
129. see also Norton v. Hamilton, 89 S.E.2d 809, 812 (Ga. 1955) (stating that a health care professional breaches a tort-based duty if he ends the relationship without "giv[ing] reasonable notice or providing] a competent physician in his place").
130. See MARK A. HALL ET AL., HEALTH CARE LAW AND ETHICS 161 (6th ed. 2003) ("[T]he relationship continues as long as the patient needs treatment for the condition that brought the patient to the physician. Once the need is satisfied, the relationship ends.");
131. see also Blanchette v. Barrett, 640 A.2d 74, 86 (Conn. 1994). According to Blanchette, the factors to consider in determining whether a physician-patient relationship has terminated are: the subjective views of the parties as to whether their relationship had terminated; the length of their relationship; the frequency of their interactions; the nature of the physician's practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was relying upon the opinion and advice of the physician with regard to a particular injury, illness or medical condition; and whether the patient had begunto consult with another physician concerning the same injury, illness or medical condition.
132. Id. at 86.
133. See supra note 100 and accompanying text.
134. See Daniels, supra note 60, at 38 ("There is a general understanding that physicians face an increased risk of contagion from disease . . . ."). Daniels argues that "[p]hysicians consented to face some standard level of risks when they agreed to enter the profession and trained for it," but that they did not consent to assume risks beyond this standard level.
135. Id. As argued below, this Article rejects the claim that physicians consent to risk solely by virtue of entering the profession.
136. See infra Part III.A.l. However, for physicians who have ongoing contractual relationships with patients, Daniels's argument actually understates the scope of the duty to treat. For these physicians, the question would be whether a risk is foreseeable, not whether it is standard. The fact that a risk is not commonly encountered does not mean that it cannot be foreseen.
137. See Clarifying Policies Related to the Responsibilities of Medicare-Participating Hospitals in Treating Individuals with Emergency Medical Conditions, 68 Fed. Reg. 53,222, 53,253 (Sept. 9, 2003) (codified at 42 C.F.R. § 489.24(j) (2008)) (summary of departmental responses to public comments on proposed rule) ("[H]ospitals facing a refusal by physicians to assume on-call responsibilities or to carry out the responsibilities they have assumed could suspend, curtail, or revoke the offending physician's practice privileges.").
138. Handicapped Children's Educ. Bd. v. Lukaszewski, 332 N.W.2d 774, 779 (Wis. 1983).
139. See Hiser v. Randolph, 617 P.2d 774, 778 (Ariz. 1980) (holding a physician liable for refusing to treat a patient). Canadian courts have gone even further, recognizing a duty to treat based solely on a physician's physical presence in the hospital, even when the physician is not on-call.
140. See Anne F. Walker, The Legal Duty of Physicians and Hospitals to Provide Emergency Care, 166 CANADIAN MED. ASS'N J. 465, 466 (2002).
141. See Ricks v. Budge, 64 P.2d 208, 211-12 (Utah 1937) (finding that it was unclear whether the patient suffered damages as result of the physicians refusal to give care).
142. 42 U.S.C. § 1395dd(a)-(b), (d)(1)(B) (2000).
143. Id. § 1395dd(d)(1)(B).
144. See Ariel R. Schwartz, Note, Doubtful Duty: Physicians' Legal Obligation to Treat During an Epidemic, 60 STAN. L. REV. 657, 679 (2007) ("[H]ospitals would have a responsibility to treat people with highly infectious diseases if their conditions were deemed to be an emergency because there is no exception under EMTALA for direct threats or significant risks.").
145. See 42 U.S.C. § 1320b-5(b)(3) (Supp. V2005).
146. See id. (authorizing waivers only for certain "transfer[s] of. . . individual[s] who ha[ve] not been stabilized" or certain "direction[s] or relocation [s] of . . . individual [s] to receive medical screening in an alternate location").
147. 42 U.S.C. §§ 12101-12213 (2000).
148. See Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 BERKELEYJ. EMP. & LAB. L. 91, 93 (2000) (analyzing the definition of "disability" under the ADA).
149. 42 U.S.C. § 12102(2) (A). The plaintiff could also satisfy the definition of disability by showing that, even though she does not actually have an impairment that substantially limits a major life activity, she has a "record" of having such an impairment or is "regarded as" having such an impairment. Id. § 12102(2) (B)-(C).
150. 29 C.F.R. § 1630.2(i) (2008).
151. Toyota Motor Mfg., Ry., Inc. v. Williams, 534 U.S. 184, 198 (2002).
152. See Schwartz, supra note 110, at 670 (noting that a person infected with pandemic influenza "might be temporally limited because she would be able to experience a full recovery and hence she would not be covered under the ADA").
153. 42 U.S.C. § 12182(b)(3) (2000).
154. Bragdon v. Abbott, 524 U.S. 624, 649 ( 1998).
155. See supra notes 42-48 and accompanying text (discussing health care professionals' risks during pandemics).
156. See, e.g., Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) (concluding that courts should defer to physicians' medical justifications for treating disabled patients differendy unless the physician's decision is "devoid of any reasonable medical support").
157. See Schwartz, supra note 110, at 673 ("Bragdon could be read to support the position that when there is a dearth of information regarding the potential risk to the healthcare provider and about the available treatment for the infected patient, the physician does not have a duty to treat.").
158. See supra notes 67-68 and accompanying text.
159. See Katharine Van Tassel, Hospital Peer Review Standards and Due Process: Moving from Tort Doctrine Toward Contract Principles Based on Clinical Practice Guidelines, 36 SETON HALL L. REV. 1179, 1182 n.11 (2006) ("'[Membership in professional associations is not required for practice, and nonmembers cannot be disciplined.'"
160. (quoting John H. Colteaux, Note, Hospital Staff Privileges: The Need for Legislation, 17 STAN. L. REV. 900, 901 (1965))).
161. See, e.g., KY. REV. STAT. ANN. § 311.597(4) (West 2006) (defining "'dishonorable, unethical, or unprofessional conduct'" as including "any departure from, or failure to conform to the principles of medical ethics of the American Medical Association or the code of ethics of the American Osteopathic Association");
162. see also R.I. Dep't of Health, Board of Medical Licensure and Discipline Homepage, http://www.health.ri.gov/hsr/bmld/ (last visited Sept. 23, 2008) ("No single list or source can offer practicing physicians guidance in every conceivable circumstance. However, the Board relies upon the American Medical Association (AMA) code of ethics as the legal standard.").
163. See, e.g., N.Y. COMP. CODES R. & REGS. tit. 8, § 29.2(a)(1) (2008) (defining "[unprofessional conduct" to include "abandoning or neglecting a patient ... in need of immediate professional care, without making reasonable arrangements for the continuation of such care").
164. See, e.g., Moon Ho Huh v. N.Y. State Dep't of Health, 681 N.Y.S.2d 872, 873 (App. Div. 1998) (upholding the revocation of a physician's license even though the physician's actions "did not cause any actual harm to his patients").
165. MODEL STATE EMERGENCY HEALTH POWERS ACT (Ctr. for Law & the Public's Health, Georgetown & Johns Hopkins Univs., Discussion Draft 2001), available at http://www.public healthlaw.net/MSEHPA/MSEHPA2.pdf.
166. Id. § 608(a).
167. Id. § 104(e).
168. Id.
169. Other provisions of the MSEHPA have been more controversial, particularly those concerning isolation and quarantine. See, e.g., George J. Annas, Bioterrorism, Public Health, and Civil Liberties, 346 NEW ENG. J. MED. 1337, 1340-41 (2002) (criticizing the MSEHPA's quarantine provisions).
170. See MD. CODE ANN., PUB. SAFETY § 14-3A-03(c) (LexisNexis Supp. 2007).
171. See DEL. CODE ANN. tit. 20, § 3140 (2005).
172. See S.C. CODE ANN. § 44-4-570 (Supp. 2007).
173. See, e.g., MD. CODE ANN., PUB. SAFETY § 14-3A-08 (LexisNexis Supp. 2007). The original version of the MSEHPA provided that health care professionals who disobey orders to work would be guilty of a misdemeanor, but this provision was eliminated from the revised version of the Act.
174. See Annas, supra note 133, at 1340.
175. See supra notes 67-68 and accompanying text.
176. See infra notes 141-46, 162-64, 177-78 and accompanying text.
177. This does not mean, of course, that everyone who believes that there is an ethical obligation for health care professionals to work during a pandemic would necessarily support these statutes. For example, Matthew Wynia argues that it would usually be preferable to rely on "'soft' enforcement" of professional duties, through penalties such as "loss of prestige or social and professional opprobrium." Matthew K. Wynia, Ethics and Public Health Emergencies: Encouraging Responsibility, AM. J. BLOETHICS, Apr. 2007, at 1, 3. However, Wynia concludes that legal enforcement of professional duties might be appropriate "where health professional services are greatly needed, despite the risk."
178. Id.
179. See, e.g., Ruderman et al., supra note 68.
180. Id.
181. Id.
182. Ezekiel J. Emanuel, Do Physicians Have an Obligation to Treat Patients with AIDS?, 318 NEW ENG. J. MED. 1686, 1687 (1988).
183. Id. The analogy to firefighters is common. As discussed in a Canadian workgroup's report: Some believe that under dire circumstances, professionals should have minimal self-regard and pursue their duties at potential cost to their own lives. By analogy, firefighters do not have the freedom to choose whether or not they have to face a particularly bad fire, and police do not get to select which dark alleys they walk down.
184. PANDEMIC INFLUENZA WORKING GROUP, UNIV. OF TORONTO JOINT CTR. FOR BIOETHICS, STAND ON GUARD FOR THEE: ETHICAL CONSIDERATIONS IN PREPAREDNESS PLANNING FOR PANDEMIC INFLUENZA 10 (2005);
185. see also Morin et al., supra note 67, at 419 ("[Firefighters and police officers know of the threats they face and are obligated to provide services in spite of those risks; similarly, risks that are foreseeable from a medical perspective cannot be avoided by physicians.").
186. See supra note 93 and accompanying text.
187. Cf. Katherine A. Knopoff, Can a Pregnant Woman Morally Refuse Fetal Surgery?, 79 CAL. L. REV. 499, 529 (1991) ("In all special relationships but pregnancy, those in the dominant position can break off the special relationship whenever the dependent is not immediately in need: the shopkeeper can close or sell the shop, and the lifeguard can quit her job.").
188. Cf. Daniels, supra note 60, at 43 ("It is not, after all, simply up to the individual entering a profession to tailor-make a contract that suits her wishes. The shape of the professional obligations to which an individual consents is determined over time through negotiation with society.").
189. See, e.g., Humphers v. First Interstate Bank of Or., 696 P.2d 527, 529 (Or. 1985) (observing that physicians' duty to maintain confidentiality derives from licensing requirements).
190. See supra note 125 and accompanying text.
191. See M. Gregg Bloche, The Supreme Court and the Purposes of Medicine, 354 NEW ENG. J. MED. 993, 994 (2006) (discussing the Supreme Court's use of AMA ethics statements).
192. Cf. Mohanty v. St. John Heart Clinic, S.C., 866 N.E.2d 85, 94 (Ill. 2006) ("AMA Opinion 9.02, while informative, is not the equivalent of an Illinois statute or rule of professional conduct and, for that reason, does not provide a clear expression of the public policy of this state.").
193. Some courts, however, rely on professional-ethics codes as "potential sources of public policy," with the conditions that the code provisions relied upon be '"sufficiently concrete'" and "primarily for the benefit of the public as opposed to the interests of the profession alone." LoPresti v. Rutland Reg'l Health Servs., Inc., 865 A.2d 1102, 1112 (Vt. 2004)
194. (quoting Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996)).
195. Schwartz, supra note 110, at 662.
196. AM. MED. ASS'N, DECLARATION OF PROFESSIONAL RESPONSIBILITY: MEDICINE'S SOCIAL CONTRACT WITH HUMANITY para. TV (2001), available at http://www.ama-assn.org/ama/ upload/mm/369/ decofprofessional.pdf.
197. COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS'N, A DECLARATION OF PROFESSIONAL RESPONSIBILITY, CEJA REPORT 5-1-01, at 1 (2001), available at http://www.amaassn.org/ama/upload/mm/ 369/declaration.pdf. The fact that professional-ethics codes are not in themselves legally enforceable may actually be one of their strengths.
198. See Criton A. Constantinides, Professional Ethics Codes in Court: Redefining the Social Contract Between the Public and the Professions, 25 GA. L. REV. 1327, 1346 (1991) ("[I]f courts were to adopt codes as law, professions might simply relax their standards to limit exposure of their members.").
199. Freedman, supra note 61, at 21
200. (quoting Robert M. Veatch, Challenging the Power of Codes, HASTINGS CENTER REP., Oct. 1986, at 14, 14).
201. See, e.g., Rosamond Rhodes, Commentary, The Professional Obligation of Physicians in Times of Hazard and Need, 15 CAMBRIDGE Q. HEALTHCARE ETHICS 424, 424-25 (2006) (relying in part on physicians' oaths to conclude that physicians' obligation to respond to disasters "should be straightforward and incontrovertible").
202. Edmund D. Pellegrino, Altruism, Self-interest, and Medical Ethics, 258 JAMA 1939, 1939 (1987). Pellegrino made these arguments in response to physicians who were unwilling to treat HIV-positive patients, but his rationale applies to infectious diseases generally.
203. See id. ("The physician is no more free to flee from danger in performance of his or her duties than the fireman, the policeman, or the soldier.").
204. Medical schools use a variety of different oaths, some of which are written by the students themselves. See Erich H. Loewy, Oaths for Physicians-Necessary Protection or Elaborate Hoax?, MEDSCAPE GEN. MED., Jan. 10, 2007, http://www.pubmedcentral.nih.gov/ articlerender. fcgi?artid=1925028. Some schools use variants of the Hippocratic Oath, but the original Hippocratic Oath has fallen out of favor.
205. See Barbara A. Gabriel, A Hippocratic Oath for Our Time, AAMC REP., Sept. 2001, available at http://www.aamc.org/ newsroom/reporter/sept2001/ hippocraticoath.htm (noting that, in 1993, only one medical school used the exact wording of the Hippocratic Oath). This is not surprising, as the original Oath required physicians to make many promises that would no longer be considered acceptable, including promises to teach medicine to the children of their teachers without accepting a fee, to share their money with their teachers if the teachers needed it, and to refrain from performing surgery or abortions.
206. See generally Lisa R. Hasday, The Hippocratic Oath as Literary Text: A Dialogue Between Law and Medicine, 2 YALE J. HEALTH POL'Y L. & ETHICS 299 (2002) (discussing the evolution of the Hippocratic Oath).
207. Ralph Crawshaw & Carol Link, Commentary, Evolution of Form and Circumstance in Medical Oaths, 164 W.J. MED. 452, 454 (1996) (quoting the World Medical Association's Declaration of Geneva).
208. Association of American Physicians and Surgeons, Various Physicians Oaths, http:// www.aapsonline.org/ethics/oaths.htm#lasagna (last visited Sept. 26, 2008).
209. Russell L. Gruen et ai., Physician-Citizens-Public Roles and Professional Obligations, 291 JAMA 94, 95 (2004).
210. See id. (discussing several benefits that health professionals receive for their commitment to societal health).
211. See, e.g., Ruderman et al., supra note 68 (suggesting that "a social contract" between health care professionals and society gives the public "a reasonable and legitimate expectation" that health care professionals "will respond in an infectious disease emergency").
212. Cf. Daniels, supra note 60, at 41 (arguing that even if a duty to treat could be justified as consistent with principles of justice, it would still be necessary to show that physicians actively accepted such a duty).
213. See supra Part III.A. 1 (analyzing assumption-of-risk arguments).
214. See Christopher J. Conover, Distributional Considerations in the Overregulation of Health Professionals, Health Facilities, and Health Plans, 69 LAW & CONTEMP. PROBS. 181. 184, Autumn 2006, at 181, 184 (discussing Medicare funding of graduate medical education).
215. See Pellegrino, supra note 158, at 1939 (arguing that, in light of public support for medical education, physicians' knowledge "is not individually owned and ought not be used primarily for personal gain, prestige, or power").
216. See, e.g., Stephen L. Isaacs & Paul Jellinek, Is There a (Volunteer) Doctor in the House? Free Clinics and Volunteer Physician Referral Networks in the United States, 26 HEALTH AFF. 871, 871 (2007) (discussing the large number of private physicians who work with indigent patients).
217. Lynette Reid, Diminishing Returns? Risk and the Duty to Care in the SARS Epidemic, 19 BIOETHICS 348, 353 (2005).
218. See Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?, 37 ARIZ. L. REV. 825, 827 (1995)
219. (explaining that one of the original justifications for licensing health care professionals was that it would assure "the competence of practitioners by confirming that they 'possessed the requisite qualification'" (quoting Dent v. West Virginia, 129 U.S. 114, 123 (1889))).
220. Huber & Wynia, supra note 49, at W7.
221. Id.
222. Indeed, the commentators quoted in the text rely on survey data about public attitudes in 1991, which was well after the AMA had revised its Code of Medical Ethics to eliminate any references to a duty to work during infectious-disease outbreaks. See id.
223. Even in terms of social status, physicians are no longer as special as they used to be. See Alex Williams, The Falling-Down Professions, N.Y. TIMES, Jan. 6, 2008, § 9, at 1 (suggesting that the pressures of managed care, increased public skepticism about the authority of physicians, and the growing prestige of Internet entrepreneurs and investment bankers have led many physicians to feel a significant loss of social status).
224. See Victor Fleischer, Two and Twenty: Taxing Partnership Profits in Private Equity Funds, 83 N.Y.U. L. REV. 1, 3-4 (2008) (explaining that hedge-fund managers are able to structure their compensation so that most of their income is treated as capital gain, which is taxed at a lower rate than ordinary income).
225. Chalmers C. Clark, In Harm's Way: Service in the Face of SARS, HASTINGS CENTER REP., July-Aug. 2003, at inside back cover.
226. Ruderman et al., supra note 68.
227. See David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653, 655 (2006).
228. See id. (noting that the no-duty-to-rescue rule is "distinctly unpopular").
229. See, e.g., Melvin A Eisenberg, The Duty to Rescue in Contract Law, 71 FORDHAM L. REV. 647, 677-78 (2002) (setting forth the "moral obligation" to rescue as a duty "to take action to save a victim from physical peril if there is no significant risk or other cost to the actor and failure to take the action would probably result in death or substantial injury to the victim"). In countries that recognize a legal duty to rescue, the duty is limited to situations that do not expose the rescuer to significant risk.
230. See, e.g., Edward A. Tomlinson, The French Experience with Duty to Rescue: A Dubious Case for Criminal Enforcement, 20 N.Y.L. SCH. J. INT'L & COMP. L. 451, 452 (2000).
231. See, e.g., Authors for the Live Organ Donor Consensus Group, Consensus Statement on the Live Organ Donor, 284 JAMA 2919, 2920 (2000) (recommending, among other measures, the appointment of "independent advocates" for donors in order to help "verify the donor's freedom from coercion").
232. See id. at 2921 (arguing that "if the potential donor anticipates being ostracized from the family by saying 'no' to the recipient, the transplant team could assist the potential donor in developing an appropriate medical disclaimer, enabling the potential donor to decline gracefully," but emphasizing that they "should not falsify donor medical information to the recipient in an attempt to provide the donor with a reason to decline").
233. See Bob Herbert, Op-Ed., While Iraq Burns, N.Y. TIMES, Nov. 27, 2006, at A23 ("[I]t has long been clear that there is zero sentiment in favor of a draft in the U.S.").
234. See U.S. DEP'T OF HEALTH & HUMAN SERVS. & U.S. DEP'T OF HOMELAND SEC., GUIDANCE ON ALLOCATING AND TARGETING PANDEMIC INFLUENZA VACCINE 6 tbl.1 (2008) [hereinafter DHHS & DHS GUIDANCE], available at http://www.pandemicflu.gov/vaccine/ allocationguidance.pdf (recommending the prioritization of such workers for pandemic influenza vaccines).
235. U.S. CONST, amend. XIII, § 1.
236. See Michael H. LeRoy, Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports, 28 BERKELEY J. EMP. & LAB. L. 331, 356-57 (2007) (discussing cases "broadening the original application of the term 'involuntary servitude' to modern situations").
237. Butler v. Perry, 240 U.S. 328, 332-33 (1916).
238. Id. at 333.
239. Selective Draft Law Cases, 245 U.S. 366, 390 (1918).
240. Butler, 240 U.S. at 330.
241. The United States did not adopt a federal draft until the Civil War. See David P. Currie, The Civil War Congress, 73 U. CHI. L. REV. 1131, 1196 (2006) ("Congress in March 1863 adopted a statute conscripting individuals into the armed forces for the first time in its history."). However, service in the militia had been compulsory in most states since colonial times.
242. See Alan Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. CIN. L. REV. 919, 923 (1988) ("In most of the colonies, militia service was compulsory for able-bodied males between eighteen and fifty.").
243. Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 459 (2d Cir. 1996)
244. (quoting Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 1000 (3d Cir. 1993)).
245. Id. (citingJobson v. Henne, 355 F.2d 129, 132 (2d Cir. 1966)).
246. Id. at 460.
247. See id. ("[Students] may avoid the program and its penalties by attending private school, transferring to another public high school, or studying at home to achieve a high school equivalency certificate. While these choices may be economically or psychologically painful, choices they are, nonetheless.").
248. Steirer, 987 F.2d at 1000.
249. Id. at 999-1000 (citing United States v. 30.64 Acres of Land, 795 F.2d 796, 800-01 (9th Cir. 1986)).
250. LeRoy, supra note 187, at 364.
251. See supra note 137 and accompanying text.
252. Steirer, 987 F.2d at 1000.
253. Rodney A. Smolla, The Constitutionality of Mandatory Public School Community Service Programs, 62 LAW & CONTEMP. PROBS. 113, 120, Autumn 1999, at 113, 120.
254. See Schwartz, supra note 110, at 688
255. (citing Devous v. Wyo. State Bd. of Med. Exam'rs, 845 P.2d 408, 415 (Wyo. 1993)).
256. U.S. CONST, amend. XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .").
257. See, e.g., Meier v. Anderson, 692 F. Supp. 546, 549 (E.D. Pa. 1988) ("The plaintiffs err ... in classifying the right to practice one's chosen profession as a fundamental right."), affd, 869 F.2d 590 (3d Cir. 1989);
258. Schwartz, supra note 110, at 688 ("A physician's property interest in her medical license is not... a fundamental right.").
259. See Sherry F. Colb, Freedom from Incarceration: Why Is This Right Different from All Other Rights?, 69 N.Y.U. L. REV. 781, 785 (1994) (criticizing the Supreme Court for failing to recognize the right to physical liberty as a fundamental right).
260. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998).
261. See Schwartz, supra note 110, at 689-90 (suggesting that "there would be a heightened risk that the governor, subject to intense pressures from multiple parties, including alarmed constituents and federal officials trying to contain an epidemic, might act in an arbitrary or irrational fashion," and concluding that "even a minimal level of scrutiny as applied by the courts provides an important check on the executive's power").
262. See id. at 690 (criticizing the MSEHPA for failing "to recognize the need for procedural due process in the context of physicians' rights").
263. Cf. Eric Lichtblau, Flurry of Calls About Draft, and a Day of Denials, N.Y. TIMES, Dec. 23, 2006, at A14 (noting that senior military officers oppose a return to the draft because draftees "are not as motivated as volunteers").
264. See ROTHSTEIN ET AL., supra note 76, at 133 (noting that hospitals in Toronto doubled the salaries of nurses who treated SARS patients and that physicians and nurses in Taiwan received "danger pay" of $300 and $150 per day, respectively).
265. For example, the Carnegie Hero Fund gives medals to "persons who perform acts of heroism in civilian life." Carnegie Hero Fund Homepage, http://www.carnegiehero.org (last visited Sept. 24, 2008).
266. Michael B. Dorff, Softening Pharaoh's Heart: Harnessing Altruistic Theory and Behavioral Laxo and Economics to Rein in Executive Salaries, 51 BUFF. L. REV. 811, 877 (2003).
267. Reed Elizabeth Loder, Tending the Generous Heart: Mandatory Pro Bono and Moral Development, 14 GEO.J. LEGAL ETHICS 459, 472-73 (2001).
268. STEVEN D. LEVITT & STEPHEN J. DUBNER, FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THE HIDDEN SIDE OF EVERYTHING 24 (2005).
269. The impact of payment on individuals' willingness to donate organs has long been a matter of debate. See, e.g., Steve P. Calandrillo, Cash for Kidneys? Utilizing Incentives to End America's Organ Shortage, 13 GEO. MASON L. REV. 69, 92 n.118 (2004) (summarizing competing views on the question);
270. Adam J. Kolber, A Matter of Priority: Transplanting Organs Preferentially to Registered Donors, 55 RUTGERS L. REV. 671, 674 & n.6 (2003) (discussing a survey in which "[o]nly 12% [of respondents] said that financial incentives would make them more likely to donate," while "5% said that financial incentives would make them less likely to donate," but noting that the reliability of the survey is questionable because individuals were not told the size of the payments).
271. Mark S. Sobus, Mandating Community Service: Psychological Implications of Requiring Prosocial Behavior, 19 LAW & PSYCHOL. REV. 153, 169 (1995).
272. Id. at 170.
273. See id. ("The key point in all of this research is that no matter how the prosocial behavior is elicited, the goal is to get the person being controlled to make attributions that are internal and positive."). David Hyman has argued that individuals who rescue others in the absence of a legal duty are generally motivated by "hard-wired altruism" and that "ex post awards or public recognition . . . are unlikely to be material factors in whether a rescue occurs."
274. Hyman, supra note 179, at 704. However, Hyman's focus was on spontaneous, one-time rescues, such as diving into a pool to rescue a drowning swimmer. Positive incentives may be more effective in situations where individuals are asked to make a conscious decision to engage in risky altruistic behavior over a sustained period of time.
275. The AMA's Council on Ethical and Judicial Affairs has endorsed the use of financial incentives to encourage physicians to work in disaster situations. See Morin et al., supra note 67, at 420 (suggesting that "volunteer teams could be offered due compensation for their training, as well as their assumption of risks").
276. As one commentator points out, the potential for rewards to discourage volunteers who would otherwise be motivated by personal satisfaction "applies only to people who already have intrinsic interest" in an activity. Loder, supra note 215, at 474.
277. Some commentators have suggested that financial incentives could be used to create a reserve corps of specially designated physicians - a "Medical National Guard" - "who would be paid to periodically participate in training programs designed to give them the skills and techniques necessary to manage various bioterrorism scenarios." G. Caleb Alexander & John D. Lantos, Commentary, Physicians as Public Servants in the Setting of Bioterrorism, 15 CAMBRIDGE Q. HEALTHCARE ETHICS 422, 423 (2006). While this argument was made in the context of bioterrorism, it also could be extended to pandemic-response efforts.
278. See, e.g., Charles B. Rangel, Op-Ed., Bring Back the Draft, N.Y. TIMES, Dec. 31, 2002, at A19 ("Service in our nation's armed forces is no longer a common experience. A disproportionate number of the poor and members of minority groups make up the enlisted ranks of the military, while the most privileged Americans are underrepresented or absent.").
279. See id. Rangel argues that "shared sacrifice" forces those in positions of authority to consider carefully the costs of war: I believe that if those calling for war knew that their children were likely to be required to serve-and to be placed in harm's way-there would be more caution and a greater willingness to work with the international community in dealing withIraq. A renewed draft will help bring a greater appreciation of the consequences of decisions to go to war.
280. Id.;
281. see also Diane H. Mazur, Why Progressives Lost the War When They Lost the Draft, 32 HOFSTRA L. REV. 553, 562 (2003) ("[A] draft that imposes shared obligation for military service ensures a military that is more representative of the society from which it draws its members . . . .").
282. See WORLD HEALTH ORG., ETHICAL CONSIDERATIONS IN DEVELOPING A PUBLIC HEALTH RESPONSE TO PANDEMIC INFLUENZA 14 (2007), http://www.who.int/csr/resources/ publications/WHO-CDS-EPR-GIP-2007-2c. pdf (stating that governments and employers have a "[r]eciprocal obligation[]" to "minimize risks to health-care workers to the extent reasonably possible").
283. ROTHSTEIN ET AL., supra note 76, at 135
284. (quoting Monique Chu, Health Workers Nervous About SARS in Taiwan, USATODAY.COM, June 2, 2003, http://www.usatoday.com/news/health/ 2003-06-02-sars-usa t-x.htm).
285. See supra note 76 and accompanying text.
286. See DHHS & DHS GUIDANCE, supra note 185, at 2 ("It is recognized that [enough] vaccine supply to [vaccinate all persons] will likely not be available all at once .... [Allocation decisions will have to be made.").
287. See Hodge et al., supra note 41, at 50-56 (discussing the application of workers' compensation to volunteer health professionals).
288. See WORLD HEALTH ORG., supra note 225, at 15 ("Governments should use their best efforts to develop or strengthen benefits systems that will provide . . . death benefits to the family members of health-care workers who die after being exposed to the pandemic influenza virus in the course of their work." (emphasis omitted)).
289. See Anthony DePalma, 9/11 Workers Not Getting Enough Care, Report Says, N.Y. TLMES, July 25, 2007, at B3 ("Almost six years after the terrorist attack on New York, the federal government still does not have an adequate array of health programs for ground zero workers . . . .").
290. Sharona Hoffman, Responders' Responsibility: Liability and Immunity in Public Health Emergencies, 96 GEO. L.J. 1913, 1917 (2008).
291. See Jill R. Horwitz & Joseph Mead, Letting Good Deeds Go Unpunished: Volunteer Immunity Laws and Tort Deterrence, J. EMPIRICAL LEGAL STUD, (forthcoming 2008) (manuscript at 3, on file with the Iowa Law Review), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1150835 (offering "new, albeit preliminary, evidence suggesting that individuals reduce their activity-level engagement by foregoing volunteering in the face of liability exposure").
292. See HEALTH SYS. RESEARCH, INC., ALTERED STANDARDS OF CARE IN MASS CASUALTY EVENTS 5 (2005), available at http://www.ahrq.gov/research/altstand/altstand.pdf ("[I]t is possible that a mass casualty event . . . could compromise, at least in the short term, the ability of local or regional health systems to deliver services consistent with established standards of care.").
293. See Hodge et al., supra note 41, at 33 ("The circumstances of the emergency as a whole play a role in establishing the standard of care for . . . health practitioners . . . .").
294. Hoffman, supra note 232, at 1926.
295. See, e.g., Hall v. Hilbun, 466 So. 2d 856, 872-73 (Miss. 1985) (discussing the "Resources-Based Caveat to the National Standard of Care").
296. See Hoffman, supra note 232, at 1943 (explaining "Good Samaritan" statutes).
297. See id. at 1944-45 (discussing the Federal Volunteer Protection Act of 1997, and noting that " [a]ll fifty states have adopted their own volunteer protection statutes").
298. See id. at 1944 (citing 42 U.S.C. § 14505(6) (2000)).
299. See generally id. at 1959-65 (explaining the proposed statute).
300. Id at 1959.
301. See Hoffman, supra note 232, at 1967 ("While egregious behavior will be deterred by the prospect of liability, the threat of liability will not loom so large that it deters individuals . . . from participating in emergency response activities or punishes them for their willingness to provide aid, as it will not attach to simple negligence.").
302. See N.Y. STATE TASK FORCE ON LIFE & THE LAW, supra note 33, at 35 ("Patients who fail to meet rationing criteria have poor prognoses and will be taken off ventilators.").
303. See Hoffman, supra note 232, at 1934 ("When an emergency strikes and the demand for respirators exceeds supply . . . physicians might be tempted to remove respirators from . . . elderly patients in order to give them to . . . younger patients .... Such acts, however, could be considered killings under criminal law.").
304. See Norman L. Cantor, Discarding Substituted Judgment and Best Interests: Toward a Constructive Preference Standard for Dying, Previously Competent Patients Without Advance Instructions, 48 RUTGERS L. REV. 1193, 1205-06 (1996).
305. Cf. Iserson et al., supra note 75, at 349 (suggesting that "[h]ealth care personnel may . . . fear the shame of abandoning their colleagues in a time of crisis" and that this fear may "act as a motivator").
306. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 914 ( 1996).
307. See id. at 915 ("If someone behaves in a way inconsistent with social norms, public disapproval may produce embarrassment or perhaps shame and a desire to hide. Sometimes the unpleasant feelings brought about by violations of social norms are intense, and the social consequences of these feelings . . . can be substantial.").
308. See Sarah E. Waldeck, Using Male Circumcision to Understand Social Norms as Multipliers, 72 U. CIN. L. REV. 455, 461 (2003) ("[Signaling theory posits that norms develop as individuals try to signal that they are of a 'good type'-i.e., that they are the sort of people with whom others should cooperate.").
309. As the American Civil Liberties Union has observed: "The notion that we must 'trade liberty for security' is both false and dangerous. It is false because coercive actions are seldom conducive to public health protection. It is dangerous because it provides a never-ending justification for the suppression of civil liberties while failing to safeguard public health." GEORGE J. ANNAS ET AL., AM. CIVIL LIBERTIES UNION, PANDEMIC PREPAREDNESS: THE NEED FOR A PUBLIC HEALTH-NOT A LAW ENFORCEMENT/NATIONAL SECURITY- APPROACH 8 (2008), http:// www.aclu.org/pdfs/privacy/pemic-report.pdf.