Term Paper: Aftermath of Hurricane Response of the Federal Government Did the Policy or Laws Change

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¶ … Duty to Rescue' in U.S. Law Post-Hurricane Katrina

The subject of inadequacy as a synonym for negligence to the tort law rule of 'duty to rescue' is perhaps the singular most shocking and complex explanation not to mention "oversight" in review of the capacity of the U.S. government to respond sufficiently to a crisis that would continue to have ramifications for half a decade. From city infrastructure to SBA loan revaluation of lost homes, the reach of the disaster impacted millions of lives; inciting significant legislative change now fostered by the assumption that taxpayer-based relief should be far more extensive than allocated prior to the event. What for many citizens prior to Katrina, merely an issue of ethical certainty and priority to 'care,' soon put legal realism and its limits in regard to disaster relief at the fore of the discussion.

In Dolan and Krug, Pediatric Disaster Preparedness in the Wake of Katrina: Lessons to be Learned, an examination of one of the highest risk categories of population, children with special healthcare needs (CSHCN), reveals a particularly insightful story about this subset of technology-dependent children whom were immediately threatened with morbidity and mortality because of inadequate state planning in provision of secondary electricity resource to run essential life-support equipment (61). Indeed, entire pediatric hospital facilities also found their capacity stripped of basic care as was the case with The Children's Hospital in New Orleans which was forced to evacuation two days after the Hurricane hit when the water pump broke. A simple supply chain issue, the inability to obtain a replacement pump caused incapacitation of the hospital. Private pediatric transport services arranged with out-of-state institutions assumed the responsibility of many critically ill newborns and children in the end, and points to the central paradigm that emerged in criticism against the utility and poor planning of Federal Emergency Management Agency (FEMA) and other official public administration.

Proxy to the glaring risk factor presented in the pediatric urgent care scenario, was the reunification issue and a child's right to legal identity -- particularly where DNA verification is not employed. Searches on behalf of children through the Center for Missing and Exploited Children consisted of "posted photos and names of missing children on its website as they were received from evacuation shelters" (60). Still, genetic match to nonverbal toddlers and other minors unable to identify parents or guardians underscores the culpability of the U.S. State in that those measures are obviously available, yet the sheer magnitude and disarray caused by the incident obviates the incredible task of disaster "service delivery" where facilities are run by volunteer staff and uneven resource access may mitigate adherence to guidelines across the board. From a legal perspective this at first glance appears incredulous, yet when put to the rule of custom within U.S. law, the "legality" of this type of critical oversight is turned on its head as retrospect to the public administrative response to Katrina is looked through the looking glass of the 'duty to rescue' and the majority rule that the "baby on the train tracks" is actually no one else's responsibility spare the parents. Omission to act, then, in general is not deemed negligent or non-feasance in federal law, as not doing anything does not oblige.

Where there are exceptions to the general rule of 'duty to rescue' there must be: 1) defendant must be part to the act that created the need to rescue; 2) causal undertaking by defendant, and this includes non-negligent conduct; 3) reliance created by the defendant where the defendant has knowledge of the need to rescue and indicates that they will fulfill the duty to rescue, and the victim is reliant in response to this communication (i.e. "you wait there and I will take the boat and seek assistance"); and/or 4) a special relationship of parent, duty to protect (i.e. firefighters), or duty to control -- an obligation of public safety. The latter elements to the rule where 'duty to protect' and 'duty to control' are precluded by immunity, may be understood where there are circumstances that are either delimited by 'Good Samaritan' statutes that must not put state actors in imminent danger beyond the scope of reasonable risk as defined by the profession; and foreseeability must be incumbent to obligation to exercise containment. Acknowledgement of legal rules, however, does not obscure public outrage.

It is through large scale disasters that we can perhaps best see the formative exercise of congressional policy; and its mechanistic super-cession of statute. In effect, protection over the right not to act was transformed by the implementation of the Post-Katrina Emergency Management Reform Act (PKEMRA), 2006 and attendant mandates organized under the supervision of the Department of Homeland Security (DHS): protocols to The New FEMA; The National Protection and Programs Directorate; and Office of Health Affairs (DHS). Redirection of FEMA authority served to increase allocations to other divisions within the DHS, and subsequent amendment to the Homeland Security Act.

The functions of the new FEMA included coordination of legacy Preparedness Directorate programs Readiness, Prevention and Planning (RPP) and the National Integration Center (NIC) furthers the collaborative agenda. The Department works toward these preparedness directives with the Office of the Under Secretary, Office of Infrastructure Protection, Office of Cyber Security and Communications (CS&C), Office of Risk Management and Analysis and Office of Intergovernmental Programs. Identification of risks, threats and vulnerabilities to infrastructure is the critical focal point of this collaboration.

According to Walter Baumy, chief of the engineering division for the Army Corps of Engineers, "there was a plan in place for handling a breach" but in the wake of Katrina's velocity it proved all back-up strategies to be highly ineffective (Supply Chain Management). From an operational standpoint, FEMA and the Army Corps of Engineers were incompetent in preparation of levees according to "worst case" scenario models despite of knowledge that cities along the coast of the Gulf of Mexico faced high probability of such an event. A level 4 hurricane, Katrina overshot hazard expectations of a level 3, and disagreements on accountability to maintenance and management of the levees and other high risk, public-private infrastructure such as major refineries and pipelines ensued as the ocean released waters far beyond the planned defense. If duty to pediatric intensive care was outside of the loop, to whom did responsibility belong?

Piece by piece the U.S. government has been forced to restructure attendant legal rules and internal policies in order to optimize disaster relief response. Where infrastructure is concerned, the systemic assignation of obligation to administrative function and enforcement of those rules as an aspect of compliance has been extensive. The attention to critical public infrastructure has been compounded by the more recent British Petroleum oil spill in the same region, such as the Temporary Suspension of Certain Oil Spill Response Time Requirements to Support Deepwater Horizon Oil Spill Response, 2010. The flexibility of legislation as an instrument toward better risk mitigation is in essence an example of the new and improved methodology used by government to address up-to-the-minute concerns. Uniform procedures to the handling of critical infrastructure information ensures adherence to regulatory reporting in response to all forthcoming such disasters by way of the Critical Infrastructure Information Act of 2002.

When it is all said and done, however, the glaring impotence of the state recedes as infrastructural matters are contained by reasonable measure, but what of sweeping attention to the human factors within the equation? DHS core priorities include some of those concerns linked to children and their right to protection in the context of chaos. Duty to rescue where children involved in a disaster scenario are more likely to be subjected to instances of abuse such as human trafficking, for example, fall under the Victims of Trafficking and Violence Prevention Act (TVPA), U.S.… [END OF PREVIEW]

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