Medical Response to Terror Threats [1 ed.] 9781607505037, 9781607505020

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MEDICAL RESPONSE TO TERROR THREATS

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NATO Science for Peace and Security Series This Series presents the results of scientific meetings supported under the NATO Programme: Science for Peace and Security (SPS). The NATO SPS Programme supports meetings in the following Key Priority areas: (1) Defence Against Terrorism; (2) Countering other Threats to Security and (3) NATO, Partner and Mediterranean Dialogue Country Priorities. The types of meeting supported are generally “Advanced Study Institutes” and “Advanced Research Workshops”. The NATO SPS Series collects together the results of these meetings. The meetings are co-organized by scientists from NATO countries and scientists from NATO’s “Partner” or “Mediterranean Dialogue” countries. The observations and recommendations made at the meetings, as well as the contents of the volumes in the Series, reflect those of participants and contributors only; they should not necessarily be regarded as reflecting NATO views or policy. Advanced Study Institutes (ASI) are high-level tutorial courses to convey the latest developments in a subject to an advanced-level audience. Advanced Research Workshops (ARW) are expert meetings where an intense but informal exchange of views at the frontiers of a subject aims at identifying directions for future action. Following a transformation of the programme in 2006 the Series has been re-named and reorganised. Recent volumes on topics not related to security, which result from meetings supported under the programme earlier, may be found in the NATO Science Series. The Series is published by IOS Press, Amsterdam, and Springer Science and Business Media, Dordrecht, in conjunction with the NATO Public Diplomacy Division.

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Sub-Series A. Chemistry and Biology B. Physics and Biophysics C. Environmental Security D. Information and Communication Security E. Human and Societal Dynamics

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Sub-Series E: Human and Societal Dynamics – Vol. 65 ISSN: 1874-6276 (print) ISSN: 1879-8268 (online)

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Springer Science and Business Media Springer Science and Business Media Springer Science and Business Media IOS Press IOS Press

Medical Response to Terror Threats

Edited by

Aaron Richman Director of the International Terrorism Office Institute of Terrorism Research and Response Jerusalem, Israel and Philadelphia, USA

Shmuel C. Shapira Deputy Director General Hadassah Medical Organization Jerusalem, Israel and

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Yair Sharan Director Interdisciplinary Center for Technological Analysis and Forecasting, Tel Aviv, Israel

Published in cooperation with NATO Public Diplomacy Division Medical Response to Terror Threats, IOS Press, Incorporated, 2010. ProQuest Ebook Central,

Proceedings of the NATO Advanced Research Workshop on Medical Response to Terror Threats Jerusalem, Israel 8 – 9 December 2008

© 2010 The authors and IOS Press. All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission from the publisher. ISBN 978-1-60750-502-0 (print) ISBN 978-1-60750-503-7 (online) Library of Congress Control Number: 2010922754

Publisher IOS Press BV Nieuwe Hemweg 6B 1013 BG Amsterdam Netherlands fax: +31 20 687 0019 e-mail: [email protected]

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Preface This book, Medical Response to Terror Threats, provides expert analysis to professionals across diverse disciplines who share a common interest in ensuring that our medical and health communities understand how to mitigate, manage, and respond to hazards, threats, and injuries caused by terrorism. It is based on the NATO Advanced Research Workshop that took place in Jerusalem, Israel, on December 7-9 2008. This two-and-a-half-day event was organized by the Terror Medicine International Center, the Interdisciplinary Center for Technological Analysis & Forecasting, and the Institute of Terrorism Research and Response. The Workshop was designed as an executive-level, educational event for medical professionals. It created a space to share scholarship and provided networking opportunities between attendees and the participating Subject Matter Experts. The Workshop covered the following topics: • • • •

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• •

Assessment of the medical threat of various types of terrorist attacks; conventional and non-conventional The special medical threat of suicide bombings Review of the unique epidemiology associated with terrorist attacks Pre-hospital and hospital management of terror-related Mass Casualty Events (MCE) Analysis of case studies and presentation of best practices Lessons learned and Standard Operating Protocols (SOP) expertise

On behalf of the International Center of Terror Medicine, the Institute of Terrorism Research and Response, and the Interdisciplinary Center of Technological Analysis and Forecasting, we thank our NATO delegates and the participants. We also thank you the reader for your interest in this book and invite you to join us for future workshops and seminars. The Editors and Co-Directors of the Workshop, Aaron Richman Shmuel Shapira Yair Sharan

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Acknowledgements We would like to extend our gratitude and thanks to the following for the opportunity we had to carry out this Workshop: First and foremost, Fernando Carvalho and the NATO Science for Peace and Security program, which adopted our proposal and provided funding for the Workshop Aharon Hauptman, Jacob Negranu and Shlomo Rozenberg for their outstanding research contributions The administrative staff of the Interdisciplinary Center of Technology Analysis and Forecasting (ICTAF), Mrs. Ricky Shamit and Mrs. Talma Shechter, and the Center for Terror Medicine Contributing members from the Institute of Terror Research and Response (ITRR), including Kineret Segal, Ety Richman, Dov Zwerling, Col. Raanan “Rani” Tal, and Saleh Qafora Michael Perelman, Co-Director of the ITRR, for his leadership role in the Workshop and in the compilation of the book Erik Miller, Director of Security Studies at ITRR, for his assistance in editing and revising the book The staff at IOS Press in the Netherlands for their guidance during the publication phase of the book Finally, all the experts and attendees who took the time to come to Jerusalem for “Medical Response to Terror Threats”, and who continue to contribute their ideas and knowledge to this emerging field.

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The Editors and Co-Directors of the Workshop, Aaron Richman Shmuel Shapira Yair Sharan

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List of Participants JEFFREY F. ADDICOTT St. Mary's University School of Law San Antonio, Texas

MEIR OREN General-Director of the Hillel Yaffe Medical Center (HYCE)

MATT DANE BAKER Department of Emergency Medicine Philadelphia College of Osteopathic Medicine

STEVEN J. PARRILLO School of Science and Health Philadelphia University

JENNIFER COLE Head of Emergency Management Homeland Security and Resilience Department Royal United Services Institute LEONARD A. COLE, PhD, DDS Division of Global Affairs Rutgers University, Newark, NJ JEFFREY HAMMOND Johnson Medical School New Brunswick, NJ Chair, NJ JARI KAIVO-OJA Finland Futures Research Centre Turku School of Economics

AARON RICHMAN Institute of Terrorism Research and Response Jerusalem, Israel / Philadelphia, PA JEFFREY V. ROSENFELD Department of Surgery Monash University, Australia SHMUEL C. SHAPIRA Hebrew University Hadassah School of Public Health International Center of Terror Medicine YAIR SHARAN Interdisciplinary Center for Technological Analysis and Forecasting Tel-Aviv University, Israel

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BARBARA J. MURPHY Albert Einstein Medical Center Philadelphia, PA

MICHAEL PERELMAN Institute of Terrorism Research and Response Jerusalem, Israel / Philadelphia, PA

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About the Editors

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AARON RICHMAN Aaron Richman is the Co-Director for the Institute of Terrorism Research and Response in Philadelphia and Israel, where he is responsible for the global Targeted Actionable Monitoring Center’s intelligence and research projects. He specializes in emergency-planning and training for incidents of weapons of mass destruction and suicide bombings. He has conducted various research projects dealing with best practices in terror response and command considerations for such incidents. He comes from a career in military and law enforcement in the Middle East. After serving military tours in Israel, he was recruited to the Central Command of the Israel National Police where he worked in various capacities at a command level to include narcotics, counter-terrorism, and operations. He has served as the Director of the Center for Special Operations Training located in Philadelphia, Pennsylvania. Under this federally funded Center, Richman established a statewide WMD program with the mission of preparing pre-hospital and hospital-care personnel in proper responses to various threats. This program included preparing healthcare facilities in hospital incident command compliancy as well as emergency response planning, exercising, and training. Mr. Richman has partaken in numerous training events associated with emergency services and law enforcement, sponsored as a consultant by the Department of Homeland Security. He has instructed paramedics, law-enforcement personnel, and civilians in mass-casualty incidents, suicide bombers, and WMD. He manages a number of international projects in the field of counter-terrorism and emergency management, including programs sponsored by the European Union and NATO. These two separate research-projects address emergency management and WMD response. He is also the lead instructor and curriculum developer for the Department of Homeland Security-sponsored program, Prevention and Response to Suicide Bombing Incidents. He has developed curriculum for the New Mexico Technical Institute in medical response to terrorist bombings as well as lectures on counter-terrorism for the International Law Enforcement Academy. He has a Master’s in Business Administration from the University of Leicester and a Bachelor’s degree in Criminal Justice from Temple University, as well as various specialized counter-terror training certifications in the US and Israel and is currently a Doctoral candidate in Public Policy and Homeland Security at Philadelphia University, where he also lectures for graduate-level programs.

SHMUEL SHAPIRA Professor Shapira received his medical degree from the Hadassah-Hebrew University School of Medicine where he also completed residencies in both anesthesiology/intensive care and medical management, as well as advanced training in pain management and obstetric anesthesia.

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He is active in several Ministry of Health National committees and councils and served as a board member of Magen David Adom (Israel's Emergency Medical Service-EMS) and chaired the Medical and Emergency Preparedness Committee of Magen David Adom and currently serves as the Deputy Director General of the Hadassah Medical Organization, Director of Hebrew University-Hadassah School of Public Health and Chairman and CEO of the International Center of Terror Medicine. During his army service, he served in the Israeli Navy and was the Head of the Trauma Branch in the IDF Medical Corps. Currently he is a Lieutenant Colonel (Res). Prof. Shapira serves as an authority on terror, trauma & emergency medicine, and instructs medical students and physicians on terror medicine, management of mass casualty events, advanced trauma life support and risk management. He has published numerous publications on trauma, terror medicine and mass casualty management.

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YAIR SHARAN Dr. Yair Sharan is the Director of the Interdisciplinary Center for Technology Analysis and Forecasting (ICTAF) at Tel-Aviv University, Israel. He holds B.Sc and M.Sc degrees in Mathematics and Physics and obtained a Ph.D in Physics from the Weizmann Institute of Science. He is the coordinator of the EU FESTOS project on future technologies and future threats. He also coordinates the EU PRACTIS project dealing with the needed balance between privacy and security in the European society. He is a partner in the I Know project dealing with Wild Cards and Weak Signals. He has completed studies in topics like “Non Conventional Terrorism”, “Psychological Deterrence”, “Emerging Technologies”, “Future Threats of Terrorism”, “Issues in Water Security”, and more. He is currently also active in studies on society resilience in emergency situations. He is a Col. (res.) in the IDF and served for some years in the research and development division. He was a senior researcher in ICTAF during 1992-2000 and is the Director of the Center since 2000. He has been a member of the oversight committee of the Center for Biological Terrorism at Tel-Aviv University. His main fields of interest are research and science policy, technology foresight and forecasting, technology assessment and security. Together with ICTAF researchers, he has participated in numerous EU projects like e-living, Nano2Life, Platform Foresight, Knowledge NBIC, and others. Dr. Sharan was the co-director of the NATO Workshop on “Water Supply in Emergency Situation” (Tel-Aviv, June 5-7, 2005) and is the co-editor of the workshop proceedings (Springer 2007, ISBN 978-1-4020-6304 – 6(PB)). He also coordinated the NATO Workshop “Terrorism and the Internet” (Berlin, 18-20 February 2008).

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About the Institutes INSTITUTE OF TERRORISM RESEARCH AND RESPONSE (ITRR) (www.terrorresponse.org)

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The Institute of Terrorism Research and Response (ITRR) is an American and Israeli nonprofit corporation created to help organizations succeed and prosper in a world threatened by terrorism. ITRR's Israeli and American experts provide counter-terrorism training, seminars, and security specialization in dealing with threats such as Weapons of Mass Destruction (WMD), suicide bombers, and other forms of international terror striking both the public and private sector. ITRR established the Targeted Actionable Monitoring Center (TAM-C) to provide accurate and actionable intelligence about potential security threats throughout the world. With a multilingual team of researchers and analysts, TAM-C gathers and provides intelligence on terrorist activities and plans, information on international hotspots, historical "red-flag" dates, and real-time security alerts. Operating under the auspices and with the resources of TAM-C, the Ground Truth Network (GTN) leverages ITRR's international contacts and sources to provide realtime intelligence from the field. In this way, the Ground Truth Network keeps international corporations apprised of threats to their assets and personnel throughout the world. ITRR works with organizations that refuse to surrender their domestic or international operations to terrorism. INTERNATIONAL CENTER OF TERROR MEDICINE (www.terrormedicine.com) The International Center of Terror Medicine’s mission is to: • Enhance understanding of terror injuries’ special epidemiology and pathophysiology • Enhance the quality of medical care provided to terror victims • Boost primary prevention and protective devices • Enhance education and develop Terror Medicine curricula targeted for leaders and medical professionals • Build Terror Medicine registry • Provide Terror Medicine workshops and drills • Encourage research on Terror Medicine The CEO of the Center is also the Director of a new initiative: in October 2009, the Military Track of Medicine was opened with 50 students at Hebrew University Hadassah Medical School. At a steady state, in the sixth year, the program will have 300 students. The program is a program of excellence in cooperation with the efforts of Medical Response to Terror Threats, IOS Press, Incorporated, 2010. ProQuest Ebook Central,

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the Hebrew University, Hadassah and IDF Medical Corps in order to develop the future leaders in clinical and academic medicine. The curriculum includes the rich MD program of the Hebrew University Hadassah School of Medicine, which emphasizes excellence in clinical care, encourages curiosity and forms the foundation for clinical and basic bio-medical research. Students receive an intense curriculum in topics relevant to military medicine such as: Trauma, CBRN, Hyperbaric Medicine, Hypobaric Medicine, Terror Medicine, Disaster Medicine, Battle- field Medicine, special issues of Occupational Medicine, Stress Disorders, Extreme Ambient Pathophysiology, etc. Students will enjoy workshops and tours related to topics of leadership, teamwork, Zionism and Judaism. During the studies, students will undergo relevant military education such as basic military training and officer courses. Students are supported for tuition and receive living subsidy. We believe that an excellent academic environment and a personal supportive approach will provide the future clinical and academic leaders for the IDF, in particular and for Israel in general.

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INTERDISCIPLINARY CENTER FOR TECHNOLOGICAL ANALYSIS AND FORECASTING AT TEL AVIV UNIVERSITY (ICTAF) (www.ictaf.tau.ac.il) Founded in 1971 at Tel Aviv University, the major university in Israel, ICTAF is a leading institute in technology foresight, technology assessment and policy-support research. Its main mission is to help policy-makers reach informed decisions based on technology's role in economy and society and to serve as a think-tank for future policy planning. In their activity ICTAF researchers are involved in a wide range of subjects with special attention to issues related to security and counter-terrorism. ICTAF participates in studies in the field of Homeland Security including threat analysis, doctrines, protection concepts and technology assessment. Reports cover non-conventional terrorism, issues in water security, future threats related to emerging technologies and more. ICTAF works closely with the Israeli Water Commissioner including preparation for emergency cases and is involved in studies covering topics in environmental and energy technology and policy. ICTAF has carried out studies on bio-terrorism, security related technology assessments, new defense and protection concepts in terror attacks, detection technologies and others. ICTAF’s clients include the Office for Counter-Terrorism in the Israeli PrimeMinister Office, the Israeli Homeland Security Office, NATO and the US DOD. ICTAF is very active in the international community and has participated in several EU-funded projects, as a coordinator or as a work package leader. ICTAF is a leading participant and coordinator of the EU security FP7 FESTOS project (www.festos.org.il) dealing with emerging technologies and new threats focusing on future terrorism. ICTAF is active also in the German-Israeli Security Cooperation program in research on society resilience in emergency situations. ICTAF is active in the NATO Science for Peace and Security program and has participated and co-directed workshops on subjects related to security and terrorism.

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Introduction

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Various types of terror threats have been discussed in several NATO Workshops. ‘Terror Medicine’ is one of the important new sub-fields of Terrorism Studies that has received special attention during our 2008 NATO Workshop in Jerusalem. The twelve chapters in this book were written by the Subject Matter Experts who actually led this Workshop. The content is based on the presentations they delivered during that exciting two-and-half-day period. Ultimately, however, the chapters in this book reflect multiple lifetimes’ worth of field experience and patient research: 1.

The Evolution of Terror Medicine by Shmuel C. Shapira, Aaron Richman, Yair Sharan, and Michael Perelman suggests steps that health professionals can take to prepare for the consequences of a terror attack.

2.

Bioterrorism: Examining American Legal and Policy Readiness by Jeffrey F. Addicott scrutinizes the US legal system in relation to outbreaks and bioterror attacks, giving counsel on how to strengthen the government’s ability to respond to disasters without violating individual rights.

3.

Radiological Terrorism by Jeffrey Hammond explores the requirements involved in planning for and responding to a radiological terror attack.

4.

The Anthrax Letters: Challenges and Lessons by Leonard A. Cole reflects on this 2001 incident and offers 15 principles to improve preparedness in the face of future bio-terror attacks.

5.

Hospital Response to Terror: Implementing the Incident Command System and NIMS in US Hospitals by Steven J. Parrillo and Matt Dane Baker explains how the emphasis in WMD training after 9/11 has benefited the US by fostering an “all-hazards” approach to disaster preparedness.

6.

The Next Step: Beyond Best Practice Guidelines by Barbara J. Murphy argues why medical training should consider worst-case scenarios and adopt a ‘reasonable care’ approach in actual chaotic situations.

7.

The Military Trauma System in Iraq and the In-Hospital Management of Blast Injuries and Mass Casualties: Lessons for Civilian Hospitals by Jeffrey V. Rosenfeld presents principles that help health professionals prepare for the challenges of bomb-blast injuries and mass casualty incidents.

8.

Ethical and Practical Issues Related to Bioterrorism, Biosecurity and Biosafety by Meir Oren raises questions about our level of preparedness for disasters or terror attacks, and explains how preparedness can be enhanced by the establishment of an international intelligence network.

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9.

UK Medical Responses to Terrorism by Jennifer Cole focuses on the unique challenges involved in the medical response to terror attacks such as the July 7 2005 suicide-bombing and the Alex Litvinenko assassination, and delves into the psychological dimensions of Terror Medicine.

10. Policies and Procedures to Law Enforcement Response to Terror by Aaron Richman analyzes case studies to explain the role of interoperability in preventing, interdicting, and responding to suicide-bombing incidents. 11. Emerging Technologies – Potential New Threats in the 21st Century by Yair Sharan covers several new scientific developments and provides a threat-assessment of the inherent dangers within these future technologies. 12. Systemic Aspects of Security Technology in Hospitals: Combining STEEPV-SWOT Methodologies in Risk Analysis of Hospitals by Jari Kaivo-Oja unfolds the phases of a plan that systematically improves the internal and external security of hospitals.

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Medical science is not normally a field that we associate with al-Qaeda or weapons of mass destruction, yet medical practitioners increasingly play leading roles in the war on terrorism. Emergency medical personnel are first-responders, called to risk their own lives in order to save others. They stand amongst police and fire officers (and others) whose shared responsibility includes rushing into the scene of a fresh terror attack when the natural human inclination is to run the opposite direction. Bravery aside, the successful medical response to terror threats requires regular training and accurate information. We offer this book in the hope that it helps others meet these needs by clarifying the epidemiological threat of global terrorism that continues to endanger our collective existence. The Editors and Co-Directors of the Workshop, Aaron Richman Shmuel Shapira Yair Sharan

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Contents Preface

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Acknowledgements

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List of Participants

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About the Editors

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About the Institutes Introduction

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Chapter 1: The Evolution of Terror Medicine, Shmuel C. Shapira, Aaron Richman, Yair Sharan, Michael Perelman

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Chapter 2: Bioterrorism: Examining American Legal and Policy Readiness, Jeffrey F. Addicott

5

Chapter 3: Radiological Terrorism, Jeffrey Hammond

19

Chapter 4: The Anthrax Letters: Challenges and Lessons, Leonard A. Cole

25

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Chapter 5: Hospital Response to Terror: Implementing the Incident Command System and NIMS in US Hospitals, Steven J. Parrilo, Matt Dane Baker 31 Chapter 6: The Next Step: Beyond Best Practice Guidelines, Barbara J. Murphy

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Chapter 7: The Military Trauma System in Iraq and the In-Hospital Management of Blast Injuries and Mass Casualties: Lessons for Civilian Hospitals, Jeffrey V. Rosenfeld 49 Chapter 8: Ethical and Practical Issues Related to Bioterrorism, Biosecurity and Biosafety, Meir Oren

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Chapter 9: UK Medical Responses to Terrorism, Jennifer Cole

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Chapter 10: Policies and Procedures for Law Enforcement Response to Terror, Aaron Richman 75 Chapter 11: Emerging Technologies – Potential New Threats in the 21st Century, Yair Sharan

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Chapter 12: Systemic Aspects of Security Technology in Hospitals: Combining STEEPV-SWOT Methodologies in Risk Analysis of Hospitals, Jari Kaivo-Oja 97 117

Author Index

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Subject Index

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Chapter 1 The Evolution of Terror Medicine SHMUEL C. SHAPIRA, MD MPHa, AARON RICHMAN, MAb, YAIR SHARAN, PhDc, MICHAEL PERELMAN, MSd a Professor at the Hebrew University Faculty of Medicine, Deputy Director General of the Hadassah University Hospital, Director of the Hebrew University Hadassah School of Public Health, CEO of International Center of Terror Medicine b Co-Director, Institute of Terrorism Research and Response c Director, Interdisciplinary Center for Technology Analysis and Forecasting (ICTAF) at Tel-Aviv University, Israel d Co-Director, Institute of Terrorism Research and Response

Abstract. Terror medicine is defined as a planned medical response to terror attacks. A model for establishing a terror medicine program is presented. Methods are provided for confirming the validity of a terror medicine program. Keywords: Terror medicine, terror response, resiliency

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Introduction Much of the world woke up to international terrorism as a result of September 11, 2001 terror attacks on America. They were further reminded of the threat to civilians by the attacks in Madrid (2004), Bali (2005) and London (2005). However, many areas of the world had seen the terror targeting of civilian populations for far longer. Tokyo, Nairobi, Tanzania, Egypt, Tunisia, Moscow, Riyadh, Iraq, Istanbul – and the list goes on. All have suffered grievous acts of terrorism. But none have suffered as many acts for as long a period as Israel. The last terror wave started on 29 September 2000. Since that time, the country with a population of 7,000,000 has suffered about 1,300 fatalities and 9,000 casualties. Every community of the country felt the effects of terrorist violence against civilians. Although suicide bombing comprised about 0.5% of all attacks it resulted in more than 50% of all fatalities and casualties. After the evaluation of unique epidemiology associated with terrorism [1], patterns of injury in hospitalized terrorist victims [2]; and the special organizational demands associated with the management of terrorism Mass Casualty Events [3] coined the term "Terror Medicine". Terror Medicine deals with the different aspects of the management of terrorism attacks both on the whole event supervision and the care of the individual victim [4].

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Preparations The first stage of preparing for the medical consequences of a terror event is identifying and defining the threat: 1. 2. 3. 4. 5.

Conventional terror Toxicological/chemical terror Biological terror Radiological terror Cyber terror

The second stage in preparations for a major terror event involves the writing of Standard Operation Procedures. (SOPs). These procedures should provide guidance to the different levels having responsibility to act on the nation’s behalf: National and Regional Health Departments, Pre-hospital Emergency Medical Services, Hospitals, and Community Medicine. National coordination and coordination between different rescue teams should be designed into the plans. The physical preparation for the response to a terror attack includes the purchase and storage of medical equipment held specifically for such an emergency: equipment for trauma management, antibiotics, antidotes, ventilators, Personal Protective Equipment (PPE), and decontamination facilities. Most of the equipment is stored in national stores, while a limited amount is maintained in local organizational stockpiles.

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Instruction The next stage, the Instruction phase, can be done in an intra-disciplinary approach (e.g. medical professions – physicians and nurses) or interdisciplinary approach (medical professions, Emergency Medical Services – EMS, security). We prefer the interdisciplinary approach because we feel that we can develop a greater understanding for each other’s needs and communication skills as partners rather than peers. History has shown that only when the individual components of the security system practice together (e.g. Emergency Medical Service and Law Enforcement) can they approach a dynamic scene in a cooperative and mutually supporting fashion. Exercises No matter how comprehensive the Standard Operating Procedures, the planning is not complete until the plans have been validated – tested and demonstrated to be effective in meeting their objectives. The testing of responses to a major terror event – whether agency, community, or society – is done through a testing process of “exercises”. These tests, Table Top Exercises (TTX) and Full Scale Exercises (FSE), are designed to validate organizational responses and abilities – not necessarily personal responses and abilities. These validation exercises assume that each agency’s staff has received the necessary training and are able to carry out their emergency roles. Thus, the lessons learned relate to the effectiveness of the planned response and not to the skills of staff. The Table Top Exercise, also known as a Command Post Exercise (CPX) or Functional Exercise (FE), is designed to test and evaluate capabilities. TTXs are

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generally focused on exercising the plans, policies, procedures, and staffs of the direction and control nodes of Incident Command (IC) and Unified Command (UC). The objective of the TTX is to execute specific plans and procedures and apply established policies, plans, and procedures under crisis conditions. The exercise simulates the reality of operations by presenting complex and realistic problems that require rapid and effective responses. The exercise assumes that the personnel in the exercise are trained and are able to operate in a highly stressful environment. Generally, events are projected through an exercise scenario with event updates that drive activity at the management level. Movement of personnel and equipment during at Table Top Exercise is simulated. Full Scale Exercises (FSE) are multi-agency, multi-jurisdictional exercises that test many of the facets of emergency response and recovery. These exercises include first responders operating under the Incident Command System (ICS) or Unified Command System (UCS). The exercises are designed to test the ability to effectively and efficiently to respond to, and recover from, an incident. An FSE focuses on implementing and analyzing the plans, policies, and procedures developed in Table Top Drills and honed in previous, smaller, operations-based exercises. However, organizations must be cautious from the lessons learned. Some lessons learned may be of limited value [add reality by simulated casualties and especially smart simulated casualties [5]. All exercises should be followed by a debriefing process – an opportunity for all participants to comment on how well the response met the Standard Operating Procedures’ objectives and to share any lessons learned from the exercise. An immediate debrief, capturing participants and observers first reactions, should be included in a detailed final debrief. The final debrief should provide guidance on plan weaknesses, communications issues, training and equipment needs, etc. A society’s ability to survive can be measured by how it reacts to a terror event – from the actual terror event through the rehabilitation of the affected parties. It requires an efficiently operating system to react to acts of terror. Events in countries such as Israel have proven that the inclusion of medical and health professionals in the preparation for major terror events has become a critical component in a society’s ability to withstand the threat of terrorism.

References [1] [2] [3] [4] [5]

Peleg K, Aharonson-Daniel L, Michael M, and Shapira SC. 2003. American Journal of Emergency Medicine 21(4):258-262. Shapira SC, Shemer J, and Oren M. 2002. Hospital Management of A Bio-terror Event. IMAJ Israel Medical Association J 4(7):493-494.); Shapira. Shapira SC and Cole LA. 2006. Terror Medicine: Birth of a Discipline. Journal of Homeland Security Emergency Management 3: www.bepress.com/jhsem/vol3/1ss2/9) Gofrit ON, Leibovici D, Shemer J, Henig A, and Shapira SC. 1997. The efficacy of integrating "smart simulated casualties" in hospital disaster drills. Prehospital Disaster Med; 12(2):97-101.

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Chapter 2 Bioterrorism: Examining American Legal and Policy Readiness JEFFREY F. ADDICOTT1 Distinguished Professor of Law and the Director of the Center for Terrorism Law at St. Mary's University School of Law, San Antonio, Texas

Abstract. Bioterrorism is defined and its function in the terrorist arsenal is explored. The US government’s response to the dangers posed by bioterrorism is chronicled historically and an assessment is made of the current level of preparedness within the United States. A major obstacle to US national preparedness is determined to be legal restraints that inhibit effective response methods such as quarantine. As these legal constraints are considered, it is concluded that a proactive effort must be made to resolve outstanding legal questions and strike a balance between public safety and civil liberties before a bio-terror attack tests the apparent weaknesses of the current system.

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Keywords: bio-terrorism, legal response to bio-terrorism, government response to bio-terrorism

Introduction Terrorists are continuously expanding their capabilities and methods, turning to new and old tools to threaten death and chaos. The use of biological agents to cause death is so feared in the War on Terror that a new term has entered the lexicon - bioterrorism. While the use of infectious substances as a tool of terror is not new–the British were alleged to have spread smallpox to American soldiers during the War for Independence–the United States has yet to suffer a major biological attack from terrorists. Nevertheless, the potential for harm is so great that federal, state, local and tribal government officials have expended considerable efforts to establish effective response plans and to improve preemptive tools already in place.

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This article is a modified and abridged version of Chapter 12, Responses to Bioterrorism and the Legal Ramifications in Jeffrey F. Addicott, Terrorism Law: Materials, Cases, Comments, 5th Edition (Tuscon, AZ: Lawyers and Judges Pub. Co., 2009).

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In the event of a significant biological attack, a variety of containment procedures would most certainly be employed to prevent or slow the spread of death and disease. Such measures would include quarantine, isolation, vaccination, decontamination, destruction of infected property, eviction, specimen testing, mandatory health information disclosure, mandatory health care responses, etc. All of these measures give rise to significant policy and legal issues. The purpose of this chapter is to explore the realities of a biological attack and to examine the local, state and federal responsibilities in preventing and reacting to the event – prevention and containment. Defining Bioterrorism Bioterrorism is a deadly specter that looms on the horizon. It can affect any living creature and cause mass destruction across great physical expanses. While there are a variety of definitions of the term, the best is found in the Model State Emergency Health Powers Act (MSEHPA), drafted in 2001 by the Center for Law and the Public’s Health at Johns Hopkins and Georgetown Universities: [T]he intentional use of any organism, virus, infectious substance, or biological product…to cause death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism in order to influence conduct of government or to intimidate or coerce a civilian population.

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Biological agents occur naturally, but may also be manufactured by man. Not all biological agents are capable of causing death or harm; therefore, not all biological agents may be suited to function as “weapons” in a bioterrorist attack. Still, harmful biological agents can be produced and disseminated with tremendous ease and can target animals, plants, crops, and material supplies. Recognizing the vast potential for widespread harm associated with harmful biological agents, Chapter 18 of the United States Code makes the possession of biological agents or devices which may be utilized to spread biological agents a federal crime. Section 178 defines a biological agent as: [A]ny microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance, capable of causing: A) death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism; B) deterioration of food, water, equipment, supplies, or material of any kind; or C) deleterious alteration of the environment.

Bioterrorism is the poor man’s “atomic bomb.” The use of harmful biological agents is attractive to terrorists for a variety of reasons: (1) many biological agents can do great harm with only a small amount of material; (2) some agents may be harvested directly from the natural environment; (3) there are numerous methods of “weaponizing” the material for release into the environment; (4) it is difficult or impossible to trace the agent to its source; (5) some harmful agents can be developed or synthesized in laboratories, stolen from company supplies or stockpiles, or genetically manipulated. In addition, biological agents are capable of changing naturally. For example, influenza is a virus that is continuously mutating and taking on new forms, most recently a form know as Avian flu originated in Asia. In short, the availability, accessibility and alterability of certain harmful biological agents makes them a particularly dangerous weapon in the hands of terrorists.

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Biological agents can be delivered to the environment utilizing a wide variety of methods. One method a terrorist may use is releasing a harmful biological agent through aerosol form in a ventilation system in a building, school, airplane, or mass transit system. Since many ventilation systems are enclosed, they contribute to the spread of the harmful material. Food and water systems are also attractive targets for biological terrorism. The consequences associated with the natural occurrence of Mad Cow disease is some indication of the panic that could quickly spread should a significant attack target the food sources of the nation. Another method of disseminating a harmful biological agent is through physical contact with the agent itself or something that is contaminated with the agent. For instance, the anthrax in the mail attacks in 2001 saw the death of at least five people (several were postal workers) when individuals came into contact with letters and envelopes containing the harmful agent. Although anthrax is not contagious, the smallpox virus is highly contagious. Diseases that are easily spread through contact between humans, animals, or insects are known as infections or communicable diseases. Communicable diseases are transmitted from person to person through physical contact with the infectious bacteria or virus by means of bodily fluids, coughing, sneezing, and feces. Because the virus or bacteria is easily and rapidly spread, requiring only a small quantity to infect a small portion of the population, terrorists could introduce the harmful agent and watch as it spread like wildfire. Furthermore, as an added bonus, there is always the probability that the disease may mutate naturally and adapt to stifle vaccines. The possibility that a terrorist could start what would become a global pandemic is not far fetched.

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Government Responsibilities and Authority The consensus among those who study the threat of a wide spread biological epidemic whether it occurs naturally or via a terrorist - is that the United States is not prepared. Among other matters, the lack of national procedures, policies, response plans, medical facilities and medicine contribute to this assessment. On the other hand, the world community is even less prepared. The last major pandemic to strike the globe was the Spanish flu of 1918. Incredibly, the flu killed about 500,000 in the United States and anywhere from 20 million to 50 million people worldwide! This tragic event, coupled with the use of poison gas in World War I, prompted the civilized world to realize the dangers of biological warfare and the need to prevent or limit the availability and use of these weapons of mass destruction. In 1925, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare was introduced and subsequently adopted by most of the world. The treaty prohibits the use of chemical and biological weapons in warfare, but is silent with regard to the development, manufacture, storage, and transfer of these weapons. In an effort to remedy the deficiencies of this treaty and to eliminate the existence of chemical and biological weapons entirely, the United Nations developed the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction. Not only does this treaty ban all development, manufacture, storage and transfer of biological weapons, it also mandates that all stockpiles of biological weapons and biological agents be peaceably and safely destroyed or legitimately diverted to peaceful purposes within nine months of entry into force of the treaty. The United States ratified this treaty in 1975.

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At the domestic level, the federal government has concentrated efforts associated with the most harmful communicable biological agents. The federal government is authorized to take official action in response to a communicable disease only if the disease is specifically designated by Presidential executive order. Executive Order 13295, as amended by Executive Order 13375, in April 2005, lists all of the communicable diseases that mandate official action:

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Cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers (Marburg, Ebola, and Congo-Crimean), Severe Acute Respiratory Syndrome (SARS), and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic.

The first responders to a bioterrorist attack will be local emergency room personnel, physicians, and health departments. These first responders must be trained to recognize the symptoms in sick individuals as early as possible to ensure that these listed highly communicable diseases are detected as quickly as possible. The Constitution of the United States grants each state the power to regulate the health, safety and welfare of its citizens. This authority is generally known as the police powers and is specifically reserved to the states by the Tenth Amendment. These powers empower the state with the ability to develop rules, regulations, policies, procedures, and plans to prepare the State’s response, within its own borders, to an outbreak of a highly communicable disease. Each state operates differently to meet the needs of its citizens; as a result, each State has a slightly different response plan. However, since harmful agents do not recognize state borders, it is imperative that states adopt a standardized set of rules that will allow better cooperation and the ability of federal agencies to lend aid more efficiently. In addition, streamlined procedures, information sharing, and compatible response plans can help states and federal agencies identify biological agents that are the result of bioterrorism as opposed to disease outbreaks that are naturally occurring. As noted, the MSEHPA was drafted to provide states with a uniformed framework for passing Emergency Health Powers Acts of their own. As of 2006, the MSEHPA has been introduced either in whole or in part in legislation in 44 States and has been enacted in whole or in part in 38 states including the District of Columbia. While the MSEHPA is not enacted verbatim in every State, the wide acceptance of many of the main principles and policies set forth in the model help to prevent conflict between state laws. Although it is beyond the scope of this chapter to detail the plans of individual states, an overview of the MSEHPA is helpful. The MSEHPA grants emergency powers to the State governor and public health officials which are subject to legislative veto. The appropriate state officials have the authority to prevent, detect, manage and contain any biological or health threats that arise within State borders. At the same time, the MSEHPA recognizes that State officials have the duty to protect individuals from undue interference with their civil rights and liberties. While the ultimate goal is to protect the health, safety, and welfare of individuals, State officials should simultaneously develop an environment that fosters respect for all social groups and individuals from every background. State police powers under MSEHPA are restricted to communicable disease outbreaks that are wholly contained within the State’s borders and naturally occurring (it may take some time before a disease can be traced to a terrorist). If a naturally occurring disease spreads past a single state’s borders or is introduced via foreign arrival from another country, the Centers for Disease Control (CDC), a part of the Department of Health and Human Services (HHS), has the

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authority to assert federal authority under Title 42 (Public Health and Welfare) U.S.C. § 264. The use of this authority is at the discretion of the Surgeon General, who must have approval of the Secretary of HHS and also may not authorize actions to address any communicable diseases other than those listed in the aforementioned Executive Orders. In the event that the CDC takes command and control the Code of Federal Regulations (C.F.R.) provides a variety of tools that the CDC can utilize. These are found in Parts 70 (Interstate Quarantine) and 71 (Foreign Quarantine) of Title 42 (Public Health). While the CDC is designated as the lead agency to prevent and control the spread of the listed communicable diseases when they occur naturally, the aforementioned laws and regulations do not control in the event of a terrorist attack. The CDC would monitor public health threats, but the FBI would take the lead for crisis management. The Federal Emergency Management Agency, now part of the DHS, would coordinate the overall national response to a terror biological attack. On February 28, 2003, President George W. Bush signed Homeland Security Presidential Directive 5 (HSPD-5) which mandated the development and implementation of a National Response Plan (NRP) that would supersede the FRP. The NRP was developed and released in 2004 and has been updated on a regular basis. The purpose of the NRP is to provide a national system for prevention, preparedness, response and recovery in the event of any national disasters, including terrorist and bioterrorist attacks. If a biological outbreak occurs in the United States, the NRP Biological Incident Annex provides the guiding procedures and policies to be followed by federal agencies in aiding state, local and tribal governments. Biological outbreaks are unique in nature as compared to most of the other possible types of national disasters. For that reason:

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Actions described in [the Biological Incident] Annex take place with or without a Presidential… declaration or a public health emergency declaration by the Secretary of Heath and Human Services.

Governmental response to any biological outbreak must be timely, strong and effective. Accordingly, at the State level, the Governor has the authority to order isolation, quarantine, or social-distancing requirements to prevent the spread of certain communicable diseases. At the federal level, §264 of Title 42 of the U.S.C. empowers the Surgeon General of the United States to order “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as…may be necessary” to prevent the spread of any of the listed communicable diseases across state lines. In addition, §70.6 of Title 42 of the C.F.R. authorizes the “detention, isolation, quarantine, or conditional release of individuals” when the purpose is to prevent the spread of any of the listed communicable diseases within the United States. Part 71 of Title 42 of the C.F.R. provides for the detention, isolation and quarantine of individuals, goods, animals and other items at ports and airports to prevent the introduction or spread of any of the listed communicable diseases. The Goal of Quarantine Quarantine is a critical tool that governmental agencies may utilize in the event of a biological outbreak to prevent the continuing spread of the subject communicable disease to new individuals. The MSEHPA defines quarantine as:

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The physical separation and confinement of an individual or groups of individuals, who are or may have been exposed to a contagious or possibly contagious disease and who do not show signs or symptoms of a contagious disease, from non-quarantined individuals, to prevent or limit the transmission of the disease to non-quarantined individuals. By definition, quarantine may be used to restrict the movement and actions of individuals who are not yet ill, and may not ever become ill, but have been exposed to the disease. Quarantine is different from isolation, which is the isolation of individuals who have become infected or ill from the communicable disease. Obviously, the main goal of quarantine is to separate people who are potential carriers of a communicable disease from coming into contact with those individuals who have never come into contact with the disease. Utilizing quarantine prevents the spread of communicable diseases during incubation periods when individuals do not exhibit any symptoms of the illness. The concept of quarantine is not new. For instance, the Old Testament commands the separation of lepers from the camps of the people and specifies specific instructions on how and when they may be returned to society. The term quarantine is derived from the Italian words quaranta giorni, meaning 40 days. It is believed that the Italian phrase was used to describe the practice of requiring ships that arrived in Venice from infected ports during the fourteenth century plague outbreaks to weigh anchor outside the port for forty days before the ship could dock. During the 2003 SARS (severe acute respiratory syndrome) virus outbreak, many countries implemented quarantine procedures to include Canada, China, Hong Kong and Singapore. Although the United States did not utilize the quarantine tool during the SARS outbreak, the President did add, by Executive Order, SARS to the list of quarantinable communicable diseases. In addition, the Executive Order also listed an extremely broad based category to cover all possible future influenza viruses: “influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic.” The Legality of Quarantine As noted, federal authority to establish quarantine in the event of a bioterrorist attack or biological outbreak rests in the Surgeon General and the Secretary of HHS pursuant to § 264 of Title 42 of the U.S.C., which has been conferred to the CDC. The law explicitly limits quarantine authority to those cases in which the purpose of the quarantine is to prevent the introduction, transmission, or spread of the communicable diseases set out in Executive Orders. States, through their police powers, have reserved the right to establish quarantines for communicable disease outbreaks wholly contained within the state borders and which are not the result of a terrorist attack. Quarantine is not always a mandatory order. Several times in history, including the more recent SARS epidemic, the government has instead suggested voluntary quarantine by individuals who believe they have come in contact with the subject communicable disease. While many individuals may choose to voluntarily quarantine themselves, legal concerns do not arise from these actions. Legal concerns involving quarantine arise only when the government issues a mandatory quarantine. The 14th Amendment of the Constitution of the United States guarantees that no person shall be deprived of life, liberty or property without due process of law. This guarantee has long protected individuals’ freedom from physical restraint. The United

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States Supreme Court has interpreted the preservation of due process to include a balancing test that weighs private interests against government interests. In Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), a case involving mandatory small pox vaccinations, the Supreme Court said: But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.

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While the individual right to due process and freedom against physical restraint are not absolute, the government may not impose mandatory quarantine orders without restraint. In every instance of quarantine, the government and the courts that review governmental actions will have to weigh individual interests in privacy, freedom and due process against the government’s interests in protecting the safety and health of all citizens. In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court noted: “What process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made.” The main goals of quarantine authority in United States law are constructed in ways that aim to protect individual due process to the greatest extent possible. The Supreme Court in Goldberg v. Kelly, 397 U.S. 254, discusses four requirements of due process: (1) reasonable and adequate notice; (2) opportunity to be heard within a reasonable manner and time; (3) available legal counsel; and (4) review of governmental actions by an impartial decision maker. Because quarantine necessarily interferes with an individual’s right to be free from restraint, the government must utilize procedures that comport with these basic due process requirements. Currently, 42 C.F.R Parts 70 and 71 lay out the federal regulations regarding quarantine and the process necessary to invoke quarantine. Specifically, § 70.6 states: Regulations prescribed in this part authorize detention, isolation, quarantine, or conditional release of individuals, for the purpose of preventing the introduction, transmission, and spread of communicable diseases listed in an Executive Order setting out a list of quarantinable communicable diseases, as provided under section 361(b) of the Public Health Service Act.

In addition to this authority, §70.5 provides special travel restrictions on persons who have been exposed to cholera, plague, smallpox, typhus, or yellow fever. Even a cursory view of the matter reveals that the current laws and regulations associated with quarantine are not settled, even at the federal level. In light of these major gaps, HHS issued a Proposed Rule on November 30, 2005, for public comment. The Proposed Rule would change and add to 42 C.F.R. Parts 70 and 71. Under the proposed version of Part 70, federal officials have several different types of tools– ranging in severity–to address a biological outbreak. For example, government officials may order measures that infringe on individual rights and liberties to a lesser degree than quarantine sanitary measures, like specific cleaning procedures or the destruction of infected materials. The proposed Part 70 provides measures to address vaccination clinics, screenings, travel restrictions and the establishment of hospitals and stations in the event of a biological outbreak. In addition to these measures, the proposed Part 70 establishes a specific process for ordering quarantine. A person may only be placed under what is termed “provisional quarantine” if the responsible government official has a reasonable belief that the individual has been exposed to a quarantinable communicable disease. Generally, individuals in such a situation will be asked to

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submit voluntarily to quarantine. However, if individuals refuse to submit voluntarily to quarantine, the official may order provisional quarantine via written order, verbal order, or actual physical movement restrictions. Individuals may be served with provisional quarantine orders either through personal service or the government officials may post or publish the order in a noticeable location. Under the proposed rule, provisional quarantine would last only three business days. If the government wished to extend the provisional quarantine, the official must serve the individual with a written quarantine order. The written quarantine order must explain the reasonable belief that the individual is in a communicable stage of a quarantinable disease based on medical evidence and that the quarantine is necessary to prevent the spread of the disease to non-infected individuals. The quarantine order must also specify the person(s) to be quarantined, the legal basis for the quarantine, the dates of quarantine and the location of the quarantine. Both the quarantine order and the provisional quarantine order must inform the person to be quarantined that they have the right to refuse any medical treatment offered, e.g., vaccination. In addition, the following rights are set out: • •

•

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• •

The quarantine order must provide the person with notice that they have the right to request a hearing to review the quarantine order at any time during the quarantine. Following a request for a hearing, the government must hold a hearing within one business day of the request. The official will provide reasonable notice to inform the individual, designate a hearing officer to review all the evidence available to the government, and make findings to determine whether or not the quarantined individual is in a quarantinable stage of a communicable disease. The individual has the right to appoint a representative to provide other evidence to the hearing officer and the government must make reasonable accommodations to allow the individual to communicate with their representative. The hearing officer, upon reviewing all the evidence, will make a written recommendation to the government regarding release from quarantine. This final determination made by the government official is deemed to be final. Section 2241 of Title 28 of the U.S.C. provides that any individual that is detained may seek a writ of habeas corpus. The hearing officer is only authorized to review the factual, scientific, and medical basis for the quarantine; therefore, the writ of habeas corpus provides judicial review of the legal and constitutional concerns associated with the quarantine.

The MSEHPA provides a model quarantine process for state government officials. Under MSEHPA: • • •

The State officials may order a temporary quarantine or isolation by written directive. The temporary isolation or quarantine may not last more than ten days. Longer periods of quarantine require that State officials obtain a court order for quarantine or isolation. The court must hold a hearing to review the evidence presented by health officials as well as evidence provided by representatives of the quarantined or isolated persons within five days of the petition to the court.

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• •

•

•

• • •

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• •

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The court may issue a quarantine or isolation order only upon finding by a preponderance of the evidence that the quarantine or isolation is reasonably necessary to prevent the spread of the communicable disease. Should the court decide to issue the order, a quarantine or isolation order cannot be for a period longer than thirty days for any individual. If the State officials believe that quarantine is necessary for longer than the thirty day period, the state must file a petition for an extension, which may not last longer than thirty days. Individuals who are quarantined have the right to request the court show cause for the order of quarantine or isolation and why the individual should not be released. The court must either grant or deny the petition to show cause within forty-eight hours and, if the petition is granted, must issue an order to show cause within twenty-four hours. During the quarantine or isolation period, the MSEHPA provides additional protections. State health officials must continuously monitor individuals for changes in their medical condition, and must release individuals immediately in the event that they are no longer in a medical state that poses a threat to others requiring quarantine or isolation. Isolated individuals and quarantined individuals shall be housed in separate locales. All quarantine and isolation measures should utilize the least restrictive means available to prevent the spread of the communicable disease. The State must provide food, clothing, shelter, means of communication, medical treatment and medication in a systematic and efficient manner to all individuals in quarantine or isolation. All quarantine or isolation locations must be kept clean and safe. The State should make every effort to ensure that cultural and religious beliefs of the quarantined or isolated persons are considered.

The Supreme Court has not squarely addressed the validity of quarantine laws and procedures enacted by states to prevent the spread of communicable diseases since 1902. In 1902, the Supreme Court heard a case from Louisiana regarding a quarantine law that prohibited a French vessel from entering a port that had been quarantined due to infestation. In Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (1902), the Court held: That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.

In further examining whether such quarantine laws were unconstitutional, the Court stated: It having been ascertained that the regulation was lawfully adopted and enforced the contention demonstrates its own unsoundness, since in the last analysis it reduces itself to the proposition that the effect of the Fourteenth Amendment was to strip the government, whether state or national, of all power to enact regulations protecting the health and safety of the people, or, what is equivalent thereto, necessarily amounts to saying that such laws when lawfully enacted cannot be enforced against person or property without

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violating the Constitution. In other words, that the lawful powers of government which the Constitution has conferred may not be exerted without bringing about a violation of the Constitution.

The case law regarding the quarantine of individuals is sparse because the United States has yet to face mass quarantine due to the spread of an epidemic, pandemic, or a bioterrorist attack. Clearly, the enactment of laws and regulations in the vein of the CDC’s Proposed Parts 70 and 71 and the MSEHPA provide starting points from which the judicial branch can evaluate the issues. In United States v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. Aug. 2, 1963), the federal district court found that the State had the right to keep a person suspected of having small pox in isolation at the United States Public Health Hospital at Stapleton, Staten Island for the balance of the small pox incubation period of 14 days from July 25, 1963. The subject was isolated because she was in Stockholm, a small pox infected local area, on July 25, 1963, and she did not present on arrival into the United States, on July 25, 1963, a valid certificate of vaccination against small pox. Search and Seizure The government also has the power to search and seize personal property in the event of the emergence of a named communicable disease. The Fourth Amendment to the Constitution of the United States provides that:

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As is often repeated, the right to be free from search and seizure conducted without probable cause or warrant is not an absolute right. There are several situations in which the Supreme Court has found that a government search and seizure without warrant or probable cause does not violate the Constitution. One instance when a warrant and probable cause are not necessary is when a search and seizure is conducted with the consent of someone who is authorized to provide such consent. Accordingly, an individual may consent to the search and seizure of personal property which may be infected with biological agents. Individuals in transit between states or at points of entry into the United States, occupy a unique position when it comes to privacy expectations. Parts 70 and 71 of 42 C.F.R. afford government officials the authority to search individuals in transit between states or individuals attempting to enter the United States from foreign countries for the purpose of determining the presence of communicable diseases. Indeed, inspections for communicable diseases are routine at all international ports of entry and are required under the C.F.R. even without the presence of a warrant or probable cause. Courts have made it clear that by the nature of being in transit or attempting to enter or leave the United States, individuals have a reduced expectation of privacy and are subject to search and seizure of their person and effects without a warrant or probable cause. The 7th Circuit, in United States v. McDonald, 100 F. 3d 1320 (1996), found that individuals who are in transit on public transportation vehicles, like a bus, train, or airplane, have a greatly reduced expectation of privacy as compared to individuals in a fixed place, like their homes. In United States v. Berisha, 925 F. 2d 791 (1991), the 5th

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Circuit held that individuals at the border, both entering and leaving the United States, are essentially on notice that their privacy may be invaded. Closely regulated commercial industries have also been deemed by the Supreme Court to occupy a position of reduced expectation of privacy, primarily due to the fact that the nature of the business is highly regulated by the government. In New York v. Burger, 482 U.S. 691 (1987), the Court set forth the standard. Because the owner or operator of a commercial premises in a “closely regulated” industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search have lessened application in this context….This warrantless inspection…will be deemed to be reasonable only so long as three criteria are met. First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be “necessary to further [the] regulatory scheme”…. Finally, “the statute’s inspection program, in terms of certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers [citations omitted].

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Finally, the requirements of the Fourth Amendment that a warrant and probable cause are necessary to conduct a search and seizure may be unnecessary if the search and seizure is conducted in an effort to prevent an imminent threat to the health or safety of the general public. The Supreme Court upheld the seizure and destruction of food that was unfit for consumption to protect the public health in North American Cold Storage Company v. City of Chicago, 211 U.S. 306 (1908). This decision suggests that in the event of a biological outbreak or bioterrorist attack, government officials may have a great amount of authority to inspect, seize, and destroy personal property to prevent the spread of deadly communicable diseases. As noted, current provisions exist in 42 C.F.R. Parts 70 and 71 to provide for the search and seizure of property at ports of entry, but no federal laws or regulations have been passed to grant such carte blanche authority to government officials in the event of a bioterrorist attack or biological outbreak in the United States. Other Legal Issues A variety of other legal concerns may arise when government officials are faced with preventative and containment measures. Officials at any level of government–federal, state, local, or tribal–may infringe on individual civil liberties. Accordingly, the full range of possible actions available to the government should be complemented by a combination of limitations, safeguards and oversight provisions to ensure the protection of individual rights. The MSEHPA recognizes that a major outbreak may quickly overwhelm the existing health care system of clinics and hospitals, requiring the government to procure property to provide for the care, treatment and housing of patients. In addition, the government may find it necessary to destroy entire facilities or private property and material that has become infected and poses a threat to the health of the general public. Private property may be taken by the government, even when the procurements are only utilized temporarily. However, when the government commits a taking of private property it must provide the rightful owner with just compensation. The MSEHPA suggests that the calculated compensation should include the value of the property at the eminent domain cost that would be afforded in a non-emergency setting.

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J.F. Addicott / Bioterrorism: Examining American Legal and Policy Readiness

Government officials will also be faced with patient concerns about protecting privacy rights. The conflicting goals of protecting privacy and preventing the spread of a communicable disease must be addressed. The MSEHPA as well as the Proposed Parts 70 and 71 of 42 C.F.R. provide for the maintenance of administrative records for each patient that will combine their legal quarantine orders, challenges, as well as their entire medical records. The protection of these records and maintenance of individual privacy should also be accounted for not only during the crisis but also in the aftermath. Use of the medical records should be limited to the provision of treatment, epidemiological research, or investigation of the cause of transmission of the communicable disease on a strict need to know basis. Another issue of concern deals with the fact that health care providers may simply refuse to provide treatment to the infected, as occurred with some hospital personnel in Canada during the SARS outbreak in 2003. To be sure, in the event of an epidemic, pandemic, or bioterrorist attack, health care providers will be in high demand and short supply. The MSEHPA suggests that states pass laws that allow government officials to compel health care providers within the state to treat individuals who have fallen ill due to an epidemic, pandemic, or bioterrorist attack as a condition of the provider’s licensing and ability to practice in that state. The MSEHPA also provides that the state officials should allow health care providers licensed in other states to assist during the crisis, in effect temporarily waiving jurisdictional and licensing concerns. Furthermore, the MSEHPA suggests that state actors, health care providers and others providing aid and assistance during an outbreak should be afforded immunity for negligent acts or omissions. Immunity would help foster action during a crisis situation that might otherwise be hindered by fear of legal repercussions. Nevertheless, immunity should not extend to gross negligence or willful misconduct or to any individual that in some way brought about the biological emergency. Legal concerns do not cease when an infected individual dies. The Black Death of the fourteenth century killed 25 million Europeans in just five years, with corpses playing a large role in the spread of the virus. Since disease can spread from human remains, government officials must have a process to control and dispose of human remains that prevents the spread of the communicable disease while taking into account the religious, cultural, familial and individual beliefs of the deceased and their survivors. Enforcement of any orders of quarantine will create a variety of problems and every mandatory quarantine order will see its violators. The MSEHPA suggests that violations pursuant to the state laws should constitute a misdemeanor. Federal law, in 42 U.S.C. § 271, states that violations of the enforcement provisions for 42 U.S.C. § 264, namely 42 C.F.R. Parts 70 and 71, will give rise to a fine not more than $1,000, imprisonment for not more than a year, or both. In addition, Subsection (b) of § 271 subjects vessels that violate orders pursuant to the aforementioned code and regulations to a fine that will not be more than $5,000. While these penalties can provide a framework for how to address non-compliance with mandatory quarantine orders, lawmakers should consider unintended consequences. For example, during the 2003 SARS outbreak in Singapore, the government ordered local law enforcement not to arrest individuals engaged in some illegal activities, like quarantine violation, so as to prevent those who may have been exposed from being pushed underground. Funding issues are also a major concern. The majority of hospitals in the United States is privately owned and is simply not equipped, staffed, or willing to stretch the capabilities of the hospital to meet the enormous needs that would occur during a major

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epidemic. In addition, if the epidemic strikes Mexico, the United States could expect a flood of people streaming across the border for health care. Diseases that cause such mayhem do not discriminate in victim choice. Privately owned hospitals in the United States will need major financial support from the government. Individuals ordered to quarantine also face the possibility that they will lose their employment. Will the government compensate those who suffer financial loss due to quarantine? In summary, a plethora of legal issues stand hungrily at the door. They will not become fully apparent until the nation is in the middle of a biological outbreak. In the ensuing chaos, the government will have to utilize all the legal tools that are currently in place and quickly develop new tools. Certainly, the government entities at all levels should plan now for the worst case scenario. The United States has managed responses to a variety of disasters in recent years, both natural and terrorist, and each new disaster brings new legal issues that require executive, legislative and judicial attention and action. Like all issues associated with the war on terror, the goal in addressing these issues is always to ensure that the citizens of the United States are safe from the crisis as well as from an over active governmental response.

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Medical Response to Terror Threats A. Richman et al. (Eds.) IOS Press, 2010 © 2010 The authors and IOS Press. All rights reserved doi:10.3233/978-1-60750-503-7-19

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Chapter 3 Radiological Terrorism JEFFREY HAMMOND, MD, MPH Clinical Professor of Surgery Robert Wood Johnson Medical School New Brunswick, NJ Chair, NJ Health Emergency Preparedness Advisory Council Chair, ACS COT Disaster and Mass Casualty Subcommittee

Abstract. Radiological terrorism is distinguished from other forms of terrorism and its most significant physical and psychological effects are noted. A detailed model for immediate response and long term recovery is illustrated. A single page guide containing key points in planning for and managing radiation injuries is included for easy reference. It is concluded that training and regular drills are essential to prepare for radiological terrorist attacks. Keywords: radiological terrorism, radiation trauma response, radiological injuries

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Introduction A terrorist event involving radioactive material would likely take the form of one of four scenarios: detonation of a small tactical nuclear device (“suitcase bombs”), sabotage of a nuclear reactor, non-explosive dispersal or placement of an unshielded high energy source of radioactive material via a radiological exposure device (RED), or dispersal of radioactive material in association with a conventional explosive, a socalled radiological dispersal device (RDD) or “dirty bomb” [1]. Planning, responding, management and recovery would be more challenging than for a conventional explosive device. Treatment of casualties is complicated by contamination. The decontamination effort is compounded by the necessity to include the area of the event and associated debris. Hence, the affected area may be much larger than the immediate area of the attack. Unlike a bombing or conventional blast, the size and nature of the event will not be known for an indeterminate time. The potential for social disorder and panic has lead to RDDs being considered a “weapon of mass disruption.” The need for specialized mental health services and debriefing, as well as medical follow up for those exposed, those potentially exposed, or those fearing exposure will be significant. Additionally, the consequences of the radiological event will be uncertain in terms of long-term health impacts. This may contribute to both public panic and healthcare worker distress. In addition to the immediate threats to public health, social issues, including potential stigmatization of victims as being unclean or contaminated, and the

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J. Hammond / Radiological Terrorism

need for environmental remediation, may result in economic disruption of markets and essential services. This may be mitigated by a communication strategy that includes pre-event education, intra-event communication, and post-event counseling and debriefing. Radioactive Contamination Exposure reduction techniques are based on the three principles of Time, Distance and Shielding. Distance is related to the area of a sphere (4šr2). Since intensity (I) is related to Source Strength (S) divided by the surface area of the sphere, energy levels at twice the distance from the source is spread over four times the area, and is therefore one-quarter of the intensity. At three times the distance, the intensity is reduced to oneninth. It is important to remember that casualties that have been irradiated are not radioactive themselves. In this regard the victim of a radiological incident differs from the victim of a biological or chemical exposure. While basic HazMat response guidelines were originally derived from radiation response documents [2], they have evolved separately since radiation does not pose the same potential degree of hazard. Healthcare workers must understand the essential difference between exposure and contamination. Irradiation is exposure to penetrating radiation. Exposure does not necessarily connote contamination however. External irradiation does not make a person radioactive. Contamination occurs when material that contains radioactive atoms is deposited on skin, clothing, in wounds or is ingested. Someone contaminated with radioactive materials will be irradiated until the source (the radioactive material) is removed.

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Response to a Terrorist Event Involving Radioactivity: Planning The planning for, and response to, a radiological terrorist event presents unique requirements for assessment, treatment, personal protection, public health, and mental health. In the event of a radiation-related event, a planned course of action should include verification and notification. Key data include ascertaining, if possible, the number of victims, mechanism of injury, on-site efforts at surveillance for contamination, the victims’ radiological status, and identity of the contaminant. While a disaster plan should adhere to an “all-hazards” approach, there should be an annex or appendix specific to radiation event, addressing specific needs such as notification of a Radiation Safety or Health Physics officer, establishment of receptacles for contaminated material and waste, distribution of radiation survey meters, and radiation-specific decontamination and physical plant maneuvers, such as floor covering. Removal of clothing and showering (“wet decon”) will remove over 85%-90% of the contamination. Facility disaster planning should include provisions for multiple showers in a temperature-controlled area, including a decon areas for those people contaminated but otherwise uninjured. In addition, plans must include provisions for management of children separated from parents, assistance for the elderly, bagging and identification of clothing for later forensic investigation and disposal, and replacement clothing.

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Radiological emergency response teams do not need high level personal protective equipment (PPE). Universal precautions will suffice. Pregnant staff should be excluded from decontamination teams. Organize staff into decon teams with set rotation schedules to minimize exposure. Emergency staff should dress in surgical clothing (scrub suit, gown, mask, cap, eye protection, and gloves) and don waterproof shoe covers. A radiation dosimeter should be assigned to each team member and attached to the outside of the surgical gown or PPE where it can be easily removed and read. These dosimeters are different from routine radiology department monitors, in that they can be read in real time on-site by the radiation safety officer (RSO). Finger ring dosimeters are preferred; however, the RSO can estimate the radiation dose to the hands based on total body dosimetry [3]. To prepare a treatment area, remove or cover equipment that will not be needed during emergency care of the radiation accident victim. Background radiation levels should be documented. Rolls of brown wrapping paper or butcher paper three to four feet wide can be unrolled to make a path from the ambulance entrance to the decontamination room. This will facilitate clean-up after the event. While it may be desirable that the treatment area have either a ventilation system that is separate from the rest of the hospital or can be isolated to prevent the unfiltered exhaust air from the radiation emergency area from mixing with the air that is distributed to the rest of the hospital, there is little likelihood that contaminants will become suspended in air and enter the ventilation system. Therefore, separate ventilation systems are not recommended.

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Response to a Terrorist Event Involving Radioactivity: Patient Care. The most common type of radiation detector is a Geiger-Mueller tube, also called a Geiger counter. The operator should first survey, and record, background readings over a 60 second span. The probe should be held approximately ½-1 inch from the skin and moved slowly in a sequential fashion over the entire body, paying particular attention to the palms of the hands and soles of the feet. When in doubt, a critically injured patient may be taken immediately into the treatment area. If the victim's condition allows, an initial, brief radiation survey can be performed to determine if the victim is contaminated. Any radiation survey meter reading above background radiation levels indicates the possibility of contamination. A more thorough survey will be performed once life-threatening problems are addressed. During triage, serious medical problems have priority over radiological concerns, and immediate attention is directed to life-threatening problems. Life-saving maneuvers, such as hemorrhage control or airway management, should not be withheld pending wet decon. In such cases, removal of clothing, followed by immediate patient care, should precede wet decon. Medical stabilization of the patient is the first priority, and full decontamination can follow [4]. Risk to healthcare staff is an obvious concern. The occupational dose limit of 5 rem per year does not apply in life-saving operations, and is extended to 25 rem per event by the US Environmental Protection Agency, and 150 rem by NATO [5]. The National Council on Radiation Protection and Measurements (NCRP) advises that emergency exposure may exceed that limit and even approach 500 rem, but in the context that this is considered an once-in-a-lifetime event [6]. The doses received by emergency department staff after the Chernobyl accident were less than 1 rem [7].

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J. Hammond / Radiological Terrorism

Time to first emesis is an important biological marker that may guide triage. The time to onset of prodromal symptoms is the most important factor in determining whether significant exposure has occurred. Initial symptoms include nausea, vomiting, diarrhea, and skin tingling. Early emesis, 1-4 hours from the time of exposure, indicates an dose likely to be at least 3.5Gy, and indicates the need for urgent treatment [8]. These patients may warrant cytokine therapy with colonystimulating factor [9]. Emesis less than one hour from exposure is associated with doses exceeding 6.5 Gy and uniformly fatal outcomes. These patients can be considered “expectant” during triage. Patients with emesis occurring more than four hours from exposure may be deferred for delayed evaluation after management of the more urgent cohort. Use care to avoid spread of any contaminants embedded in or on the clothing. Clothing and accompanying linens should be placed in marked, red plastic bags. If practicable, washing fluid should be collected for later analysis by the health physicist, to determine the dose received and for forensic analysis. If not practical, washwater can simply be directed to the domestic sewerage system. Care-givers should change gloves after handling clothing or other potentially contaminated items. Once the patient is decontaminated, he or she is given a bracelet or tag to designate that the procedure has been completed for later care-givers. Care must be taken to avoid creating abrasions or open wounds which increase morbidity and mortality. In cases where open wounds are present, consider all such wounds as contaminated until proven otherwise. Swab wounds with a cotton-tip applicator and survey the cotton tip for levels of radioactivity. Remove visible radioactive material and place it into a lead pig for proper evaluation and disposal by the RSO. Remove foreign bodies with forceps or pick-ups or a water-pik; never handle directly without instruments. To assess for internal contamination, swab body orifices including the nostrils, mouth, ears and rectum and survey the swabs. The most common site of injury is the lungs, resulting from inhalation of contaminated air. Nasal swabs within 1.5 hours of the event will give an indication of isotope size and lung burden [10]. A threshold dose of 0.5 Gy is required to induce most substantial adverse fetal effects [11]. The risk of major malformations is primarily between gestational days 18 to 40, although the specific window for fetal harm leading to embryonic death is 4-11 days. Termination of pregnancy is not justified based on radiation-related risk for fetal doses less than 10 rem. Exposure to 5 rem increases the risk of severe heredity effects by approximately 0.02% [12]. Fetal doses greater than 50 rem can cause significant damage however, depending on the dose and stage of gestation, leading to difficult care decisions for the mother and treatment team. When surgery is required, it is preferable to do so within the first 48-72 hours or on a delayed basis. Beyond that window of opportunity, bone marrow suppression and derangements in wound healing, bleeding diathesis and infection risk make operative management complicated and risky [13]. If no symptoms appear within 24 hours, and there is no aberration in the peripheral blood count, especially the total lymphocyte count, the patient can be discharged home [14]. Mental health considerations will pose a large Public Health burden. In keeping with other terrorist events, an RDD will likely produce four psychological casualties for every physical victim [1]. It is imperative that following initial care and treatment, someone with knowledge of radiation effects spend adequate time answering the patient's questions and addressing concerns of the staff.

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Aftermath and Recovery Survey the facility for contamination and decontaminate as necessary. Normal cleaning routines (mop, strip waxed floors) are typically very effective and generally adequate. Replace cloth furniture, floor and ceiling tiles, and other physical plant items that cannot be adequately decontaminated. The decontamination goal is less than twice normal background levels. Management of the deceased requires coordination with the medical examiner or coroner’s office. The US Centers for Disease Control and Prevention has published guidelines for handling decedents contaminated with radioactive materials [15]. Over time, the event will evolve from a response to a recovery phase. However, because of the prolonged time frame associated with radiation sickness, which extends into months, and potential long-term appearance of malignancies, this will likely be spread over a longer time frame than other types of disasters. Worker monitoring, debriefing and counseling as needed is an essential part of a successful response. The most important take home message is: Train and drill to ensure competence and confidence.

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Key Points in Planning for and Managing of Radiation Injuries •

This is a weapon of mass hysteria, not a weapon of mass destruction. Given proper precautions, the risk to health care workers is negligible.

•

Externally exposed patients do not become radioactive and therefore do not pose a significant risk to EMS or other responders. Do not delay medical treatment.

•

The major hazard to health and safety is the explosion itself and/or injury from shrapnel or fragments.

•

Contact your Radiation Safety Officer or Health Physics specialist early.

•

Universal Precautions will help delay or prevent the spread of contamination. This includes double gloving. Lead shields are not necessary and give a false sense of security.

•

A high gamma source may be present at the emergency site. Perform a radiological assessment. The Incident Commander should limit access to the “hot zone” to what is necessary to assist victims.

•

Assess and treat life threatening injuries immediately, Treatment of such takes priority over decontamination. Do not delay advanced life support.

•

Removal of patient’s clothing will reduce contamination by 85-90%. Place clothing in a plastic bag and label with name and location. Washing of skin with water and a mild soap is effective for initial decontamination after clothing removal. It is not necessary to collect the water used for decontamination.

•

Decontamination is successful when radiation counts are