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  1. 1. ARRTC – 2012 Judgment – Proofing and Contracts - Fall, 2012 John R. Wible, J.D., General Counsel (Retired) Alabama Department of Public Health Extended OutlineSlide 2. Disaster Comes in Many FormsSlide 3. It Could Be Anywhere Evacuation of LYU Langone MC. New York City, New York – November 9, 20121 Bellevue Hospital remains closed, and NYU Langone Medical Center is not yet accepting inpatients. Employees are at their stations and the Internet is working, as the medical center fights to regain its footing. A week ago in the midst of Superstorm Sandy, when 1st Avenue became a river and NYU was flooded rendering its emergency generators inoperative, doctors and nurses combined forces with police, firefighters, and paramedics to transfer over 300 patients successfully from the hospital in the middle of the night. Hospital generators have failed before during the blackouts of 1977 and 1990, but nothing had every occurred on this scale. Patients on respirators including 20 babies were successfully brought to other hospitals, with residents from NYU going along to help transfer care. ...1 USA Today, November 9, 2012. http://www.usatoday.com/story/opinion/2012/11/08/hurricane-sandy-nyu-hospital-evacuation/1690615/ Accessed November 9, 2012.1|Page
  2. 2. 2 NYU didn’t anticipate such heavy flooding from . . . as they did with Hurricane Irene a year ago. However, between 7 and 7:45 p.m. Monday, the hospital’s basement, lower floors, and elevator shafts filled with 10 to 12 feet of water, and the hospital lost its power. . . “Things went downhill very, very rapidly and very unexpectedly,” [a hospital spokesperson] said. “The flooding was just unprecedented.” Emergency generators did kick in, but two hours later, about 90% of that power went out, and the hospital decided to evacuate. [...] Four of the newborns were on respirators that were breathing for them, and when the power went out, each baby was carried down nine flights of stairs while a nurse manually squeezed a bag to deliver air to the baby’s lungs. “This is a labor intensive, extremely difficult process,” [he] said. About 1,000 staff members — including doctors, nurses, residents, and medical students — worked to evacuate the remaining patients by flashlight, along with the help of firefighters and police officers. [He] noted that NYU’s facility is designed to withstand floods, and only one building flooded during Hurricane Irene. However, Sandy left seven hospital buildings flooded with between seven and ten feet of water.Slide 4. New York Patients Transferred. Further:3 Tuesday morning, Brooklyns Coney Island Hospital relocated about 180 patients after a blackout Monday and being down to a single generator Tuesday morning, according to . . . a spokesperson for the New York City Health and Hospitals Corp.2 Ressler, ThinkProgress-Health, October 31, 2021. http://thinkprogress.org/health/2012/10/30/1109531/hurricane-sandy-forces-new-york-city-hospitals-to-evacuate/?mobile=nc Accessed November 9, 2012.3 Huffington Post, 10/30/2012. http://www.huffingtonpost.com/2012/10/30/hurricane-sandy-hospitals_n_2044000.html Accessed 11/9/2012.2|Page
  3. 3. "Weve had significant challenges at many of our hospitals and health care facilities," Mayor Michael Bloomberg said at a press conference Tuesday. "Fortunately, as of now there has been no storm-related fatalities at any them." Two other Manhattan hospitals, New York Downtown Hospital and the Veterans Affairs New York Harbor Healthcare System, emptied their beds before the storm hit. The New York State Department of Health was still assessing the condition of hospitals outside the city Tuesday morning, said [a]spokesperson . . . One New Jersey hospital, the Palisades Medical Center in North Bergen, had to find beds for 83 patients because of the storm, New Jersey Department of Health and Senior Services representative Donna Leusner told HuffPost. The Hoboken University Medical Center shut down Sunday night and relocated 131 patients, she said. About 100 New Jersey hospitals, nursing homes and assisted living facilities are running solely on generators, she said. As in other locales, New Jersey facilities, including Valley Hospital in Ridgewood and Camdens Cooper Hospital and Lourdes Hospital, preemptively cut back on nonessential services such as elective surgeries and outpatient treatments. Hospitals across the region hit by Sandy, including the NYU hospital, took other advance steps, such as moving fragile patients before the storm began All of Pennsylvanias hospitals are open, but facilities -- especially in the Philadelphia and Lehigh Valley areas -- face electrical outages and some are relying on backup power, said Penny Kline, a representative for the Pennsylvania Department of Health. The Maryland Emergency Management Agency reports no closures or evacuations of any hospitals or nursing homes in the state, said Ed McDonough, a representative.3|Page
  4. 4. McCready Memorial Hospital in Crisfield on the states Eastern Shore isnt taking any additional patients because its down to backup power, he said. Floodwaters found their way onto the first floor of another Eastern Shore facility, Dorchester General Hospital, but patients are safe, he said. Tidal flooding from the Chesapeake Bay and the Potomac River remain a concern, he said. No hospital or nursing homes closed or relocated patients in Virginia, although three nursing homes are running on generator power, according to Maribeth Brewster, a representative for the Virginia Department of Health. She also reports that the department doesnt expect flooding to pose any difficulties for the states health care facilities.Slide 5. But Even Before Then . . .TUSCALOOSA, AL (RNN) – April 27, 2011.A horrific storm system that killed more than 300 people in seven states across the South is one of the worstthe country has experienced in more than four decades.In the 24-hour period that ended at 8 a.m. CT Thursday, 163 tornadoes had been reported by eyewitnesses.One of those, a mile-wide tornado that bisected Alabama, killed more than 200 people in that state alone,barely missing a college campus housing thousands of students, but leveling a large swatch of town with itsdestruction.Officials are on the ground Thursday assessing the damage and delivering emergency services and supplies tothe victims of the storm.Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228 people in 19 countieshad died in Alabama.4|Page
  5. 5. A state of emergency was declared by the president shortly after the storms raged through.In his statement Wednesday, Obama said he told Alabama Gov. Robert Bentley, R-AL, he had ordered thefederal government to move swiftly in its emergency response.Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossing boats from a storeinto an apartment complex, ripping holes in rooftops and destroying a swath of restaurant establishmentsalong a bustling street."I dont know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN. "Were used totornadoes here in Tuscaloosa. Its part of growing up. But when you look at the path of destruction thats likely5 to 7 miles long in an area half a mile to a mile wide ... its an amazing scene. Theres parts of the city I dontrecognize, and thats someone thats lived here his entire life."Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday, search and rescuepersonnel looked for victims who could be buried beneath the rubble.Slide 6. DCH Could Have Been Hit- What If ?????The massive tornado left Tuscaloosas two hospitals swirling in activity. One, in direct line of the storm, alsosuffered damage from the twister."Were estimating around 600 were treated at DCH Regional Medical Center," said Brad Fisher, DCHspokesperson.5|Page
  6. 6. Windows in several patient rooms as well as a waiting area were blown out there.Fisher said the hospital was without water for about six hours, and power was only restored in the wee hoursof morning.More than 100 patients per hour flooded their doors immediately after the storm, Fisher said. The hospitaladmitted 92 people and reported five dead as of Thursday morning."Our numbers will increase today," Fisher said. "Business in the ED is steady, so were not done.Slide 7. Government Authority to Act in Emergencies: ModelAt height of emergency – authority is at its peak. Broad discretion exists under both state and federal laws forthe executive – including police and public health officials – to take actions deemed necessary to reduceimminent threats to life, property, and public health and safetyWhen the crisis is brought under control – when there are no longer imminent threats to life, property, andpublic health and safety requiring immediate action, the scope of authority is reduced – as need to protectother values and individual rights, resume normal roles.Further, once immediate threats to life and to public health, safety, and property are addressed, all thoseinvolved in a response will necessarily be faced with the challenge of paying for the loss and damage that hasbeen sustained.Legal issues are still very important even at the height of a crisis – and choices made during crisis moments canhave a substantial impact on how losses and damages are paid for after the event.6|Page
  7. 7. Slide 8. The Eye of the Storm- What Really Happens in a DisasterThe following article appeared in the Daily Reveille on July 20, 2006: A doctor and two nurses were arrested Monday for allegedly practicing euthanasia at Memorial MedicalCenter in New Orleans in the days following Hurricane Katrina. The three medical staffers were each arrested for second-degree murder. The three are accused ofinjecting patients with lethal doses of Morphine and Versed. "This is not euthanasia. This is homicide," Attorney General Charles Foti said. "Were talking aboutpeople who pretended that maybe they were God." … The trio allegedly intentionally killed multiple patients by administering or helping administer lethaldoses of the two drugs. The investigation was sparked following Katrina and eventually led to a LifecareHospitals statement that reported possible euthanasia of patients at Memorial Medical Center. [The Hospital stated:]"I believe this case is a strong one and that these charges are based on sound legaland medical evidence. … While I am aware of the horrendous conditions that existed after Hurricane Katrina,… I believe that there is no excuse for intentionally killing another living human being." … [A]ccording to LSU associate sociology Professor Sung Joon Jang, [he] believes the three accused werelikely trying to help and meant no ill harm. "Their motive was to do something good," Jang said. "At the time it was probably their best judgment. Ofcourse when you do something like this, it brings in the moral and physiological principles and legal questionsthat must be addressed. No matter what their decision, their motives could have still been questioned." … Jang believes the accused three were acting out of compassion, but in Louisiana, euthanasia is againstthe law. "The fact is, the law was broken and it is my job to seek justice for the victims in this case," [LouisianaAttorney General Charles] Foti said. "It gives me no pleasure to report what happened here today and myheart goes out to the families and loved ones of those victims." In January 29, 2007, the staff members were fired from their jobs. In March of 2007, their case waspresented to a special grand jury. On July 3, 2007, the Grand Jury returned a “no bill.” On August 16, 2007,the New Orleans court expunged Dr. Pou’s record with a promise to do the same for the nurses.7|Page
  8. 8. Louisiana subsequently changed the law to provide more protection for professions in such exigentsituations.Slide 9. Disaster/PlanningDisaster -Any emergency that disrupts normal community function causing concern for the safety of itscitizens.Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death thataccompanies a disaster.Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in thehospitalSlide 10. So, what really happens? How do people’s relationships change? Do people think and react differently? Are the consequences the same as if you had reacted “in the sunshine?” The “Outback Steakhouse Question,” are there really “no rules?” How can you “rank” people in order or precedence to receive vaccine, ventilators or treatment according to ethical principles? Can you invoke “altered standards of care? What are the rights of staff to desert?8|Page
  9. 9. What happens in a disaster? CERT Training from FEMA tells us what we already know. Disaster survivorsnormally experience a range of psychological and physiological reactions, the strength and type of whichdepend on several factors: prior experience with the same or a similar event; intensity of the disruption;length of time that has elapsed between the event occurrence and the present; individual feelings that thereis no escape, which sets the stage for panic; and the emotional strength of the individual. Studies have shownthat their reactions go through stages and that their reaction to workers varies according to the stages fromexuberant following of instructions to disbelief and disgruntlement.Slide 11. Effects on Victims and StaffPsychological, physiological and physiological Symptoms: Irritability or anger, blaming or denial, mood swings, fear of recurrence, hyperactivity, feeling stunned, helpless, numb, or overwhelmed; Loss of appetite and energy, headaches, chest pain, and fatigue; Isolation, withdrawal, diarrhea, stomach pain, nausea; Increase in alcohol or drug consumption; Nightmares and inability to sleep; Concentration and memory problems; Sadness, depression and grief;For our purposes, we know that disaster workers may go through many of the same symptoms leading to theconclusion that in the end, they may become “stressed out” and may make bad choices and the wrongdecisions.9|Page
  10. 10. Slide 12. What if Power is Lost as in the recent Northeast Super Storm?Also lost are: Sewage / water systems Lights/Cooling and heating elements Elevators and automatic doors Internal and external communications Ability to track and ID patientsUsual mechanisms for internal communications may not function, establishing lines of communications is vital.Key staff should meet at a designated time and location at least once daily. We must establish emergencycommunications with the area, EOC and establish a command structure followings NIMF. Very important isthe need to have a plan to communicate information to patients and families and other facilities.Slide 13. Other Contemplated Losses Food, water and utensil supply Shortages of meds, disposables and DME o You should anticipate the most critical o Personal Hygiene / Sanitary Supplies o PPE needed o Food, meds and water w/evacuees Staff and Security losses Handling waste: medical and other Transportation and fuel10 | P a g e
  11. 11. Identify reporting relationships in hospitals incident command structure and address staff support needs: Housing, transportation, family support needs, etc. Protocol to identify various types of licensed independent practitioners In advance, compile and maintain list of staff emergency contact information and an acknowledgement of whether the individual will work during emergency events or not. In advance, establish and disseminate a call-in number for staff to obtain news and information from the facility. Establish which radio and television stations will broadcast information about the facility in the event the call-in number is not working. Identify how hospital will obtain and replenish medications, supplies food, and water and diesel fuel. Identify how hospital will share such resources with area health care providers How hospital will transport patients, their medications, supplies, clinical information, equipment and staff to alternate site . Clarify and identify roles of community security agencies for management of hazardous waste and materials and provisions for radioactive, biological and chemical isolation and decontamination. Plan for control of personnel within the facility, and vehicles that access the facility during an emergency Designate individual to monitor emergency broadcasts/alerts via battery operated TV or radio. Consider what secondary communication methods are available: Cell phones, text, Ham Communication with vendors and essential service providers.Internet – remember that even if you have power and internet connection, regulatory agencies may not.Notifying external authorities, employees, staff, patients and families that emergency response measures havebeen initiated is important.11 | P a g e
  12. 12. Communications with area health care organizations, regarding contact information, resources and assets thatare available to be sharedCommunications about patient names with area health care entities and third partiesState Department of Health, Police, FBI, etc. must also be maintained.But, what if you have failed to do some of the above, or didn’t do it to the satisfaction of somebody?Slide 14. Don’t Be Bait for Liability Federal Issues Criminal Issues Administrative Issues Civil Issues – Torts and ContractsSlide 15. Federal Law Causes of Action1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation Act, FD&C Act; HIPAA; EMTALA;FMLA; FLSA (wage and hour); OSHA; and FDA.The Centers for Medicare and Medicaid Services (CMS,) the Inspector General of the United StatesDepartment of Health and Human Services (IG/HHS,) the Department of Justice, Medicare and Medicaid Fraudand Abuse Division (DOJ) and any other combination of alphabet-soup regulatory agencies at the federal andstate level when they refuse to either pay you or threaten to investigate you for fraud.Especially important in the aftermath will be CMS reimbursement under Medicare and Medicaid.12 | P a g e
  13. 13. Slide 16. HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of 2009Slide 17. The “Golden Rule of Documentation:” If it ain’t wrote down, it didn’t happen! The way it is wrotedown is the way it happened regardless of the way it happened!Slide 18. Confidentiality- Access to RecordsGeneral rule – (Privacy Rule) All patient information is strictly confidential. You must maintain patientinformation confidential outside the necessary situation. However – exceptions in emergency situations existunder 45 CFR 164.512 – emergency personnel and law enforcement.Slide 19. Imperatives for Protecting PHIImprovements in health care and community health require responsible sharing of some PHI. In the absence ofprivacy protections, patients and others may avoid some clinical, public health and research interventions totheir detriment. Individual privacy protections must balance with legitimate community uses of PHI, i.e.,health research and public health.Slide 20. Methods to Avoid Liability – DCH suggestions Have only one or two voices to media and the public, IE., thousands of calls Train employees to route pts. to triage regardless of ingress Avoid inappropriate behaviors Participate in QA/QI and Con-Ed programs Know and follow policies , protocols, procedures, laws and regulations Strictly adhere to training protocols Strictly follow instructions of medical direction and superiors13 | P a g e
  14. 14. Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central clearinghouse. Follow up pts later with your EMR. o It only IDs pt. and tells status. No PHI to inadvertently release o Hospital spokes person or receptions on phone have access to this system and can locate pts. For press and family members w/o giving PHI. o Technically, even the name of the patients is PHI, but that’s minor. o Have only one or two voices to media and the public, IE., thousands of calls Document, document, documentSlide 21. Disaster Applicability - DHHS Says:Responding agencies will need to get PHI to respond to emergencies, therefore, a covered entity can disclosePHI to emergency authorities in such an event.Attempt to have prepared systems that minimize non-emergency disclosures. See 45 CFR 164.512(b) publichealth activitiesSlide 22. EMTALA - Section 1867, Social Security Act Must triage and stabilize then treat or transfer What if you are in a disaster? o DCH found the Statewide Trauma System to be very helpful o Plan to set up emergency triage sub-stations o Have transfer agreements – where and how  Ambulances – is there prohibitive (exclusive) ordinance?  ADPH bus kits If in a true disaster, it is unlikely HHS will pursue a provider in absence of obvious fraud14 | P a g e
  15. 15. Let’s first define EMTALA. What’s an Emergency? The definition provided under the statute is: "A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in -- placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part, or "With respect to a pregnant woman who is having contractions -- that there is inadequate time to effect a safe transfer to another hospital before delivery, or that the transfer may pose a threat to the health or safety of the woman or her unborn child." As to whether turning someone away constitutes an EMTALA violation, health care providers concerned about EMTALA compliance and litigation exposure will naturally ask "Is this a violation?", and they will want a yes or no answer. The responsible lawyer cannot, in many cases, answer with a yes or a no. A more detailed factual and legal analysis is required. You may be surprised to learn that the question of whether a violation occurred is perhaps not very important for the institution. The more pertinent questions are: What are the chances that somebody going to sue based on this event? If he does, what are the chances that he will win? If CMS is called to investigate, what are the chances that it will cite the hospital for a violation? EMTALA compliance is, at base, a risk management endeavor. Thus the questions are best focused on the chances of an adverse finding or result, rather than on the issue of whether a given event "is a violation". As is the case in other areas of the law, the issue is not so much what the law says as whether someone (a judge or an investigator) is likely to conclude that the law was violated. Very often, the answers to these questions will depend on the particular factual situation and the competing interests that are at work.15 | P a g e
  16. 16. Slide 23. Where does EMTALA Apply? The 2003 regulation revisions provide: A person who presents anywhere on the hospital campus and requests emergency services, or who would appear to a reasonably prudent person to be in need of medical attention, must be handled under EMTALA. Other presentations outside the emergency room do not invoke EMTALA. The 250-yard zone will continue to apply when defining the "hospital campus". Now, however, that sphere does not include non-medical businesses (shops and restaurants located close to the hospital), nor does it include physicians offices or other medical entities that have a separate Medicare identity. EMTALA does not apply to any off-campus facility, regardless of its provider-based status, unless it independently qualifies as a dedicated emergency department.Slide 24. Evacuation Plan – Have One - And Stick to It Does it violate EMTALA? Plan w/ other facilities to take pts. Plan w/city, county and schools to use vehicles and (importantly) drivers o N.O. didn’t evacuate in part, because though they had buses, they didn’t have drivers who had deserted and the mayor was afraid of the consequences of executing the plan. Tenet-Memorial Hospital (N.O) settled suit involving their evacuation plan, especially, changing in mid- stream. In Preston v. Tenet Health care systems Memorial Medical Center Inc., 05-11709-B-15, Civil District Court, New Orleans Parish, the family of Leonard Preston, who sued on behalf of people who were at the hospital or had a relative who died, claimed the center wasn’t prepared to care for patients and had no emergency plan to evacuate. Patients waited four days to be rescued. At least 34 patients died at the hospital after the hurricane knocked out power and the temperature inside the building rose to more than 100 degrees Fahrenheit (38 degrees Celsius). The hospital’s windows couldn’t be opened. Tenet believed that due to the publicity, they could not get a fair trial. Be that as it may, the verdict is what the jury says it is.16 | P a g e
  17. 17. Slide 25. OSHA in a Disaster – Plan! Have pre-emergency drills implementing plan, using plan & ICS System Establish lines of authority and communication between incident site and hospital personnel. Designate disaster team including ED MDs, nurses, aides and supp. pers. w/PPE Designate alternate sites Post-emergency critique of the hospitals emergency response – OSHA Pub. 3152 (1997)Slide 26. Fair Labor Standards Act Plan should include use of reserves and time off where possible Even in a disaster, you need to document the hours non-exempt personnel are working. Time off may be given later or Overtime pay required for non-exempt employees If you have a Gov.’s Proclamation, a Stafford Act declaration and are executing your approved disaster plan, it is possible that you may be designated a state entity and eligible for 80% reimbursementSlide 27. Pure Food, Drug & Cosmetic ActBe careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or pharmacist. Plan a workaround of this. Work with city to have pre-established aid stations w/pharmacist coverage. Pharmacists can beobtained and dispatched through ADPH volunteer network.Slide 28. Licensure Issues – Bed CapacityCode of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximum bed capacity. This maybe exceeded in emergency by contacting ADPH Bureau of Health Provider Standards for a temporary waiver.This probably can be done through AIMS and this will not be your biggest problem.17 | P a g e
  18. 18. Slide 29. The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements related to emergency managementThe hospital has Emergency Operations Plan. The hospital engages in planning activities prior to developing itswritten EOP. The hospital prepares for how it will: communicate, manage resources, provide security, staff,and grant privileges to other practitioners during emergencies. TJC leave it up to you to draft the plan, IE.,there is no “formula” plan.Slide 30. Criminal Complaints Trespass Assaults and Batteries Theft of property Conversion Offenses involving sexual misconductSlide 31. Civil Liability, Lawsuits, Defenses and ImmunitiesSlide 32. Torts An actionable wrong under the law o Negligent torts o Intentional torts o Strict liability -Probably not a concern here Recoverable in a civil action against you Filed in Circuit Court The plaintiff wants money damages18 | P a g e
  19. 19. Slide 33. Types of Torts Malpractice and professional liability o General tort liability – negligence for an act or omission for economic loss and non-economic loss Gross neg., wanton misconduct, bad faith Vicarious liability and Respondeat superior Negligent recruitment/training/supervision Premises Liability (slip and fall, glass in beans)Slide 34. NegligenceThe failure to act or perform in a particular situation as any other reasonable prudent practitioner with similartraining would act under the same or similar circumstances.Negligence is defined using different words in different states. It is generally defined in the state’s case lawrather than in statutory law. But however, it is defined, negligence comes down to a failure to use reasonablecare under the circumstances, or to act as a reasonable person would under the same circumstances. Theoperative word is “reasonable.”The standard is essentially the same for professionals. The difference is that the “reasonable person” that aprofessional is compared to is another professional with similar background and expertise.In both professional and general liability claims, bad results alone are not enough to support a claim fornegligence. There must also be a lack of reasonable care.The elements of a negligence claim are also a matter of state common law. They come down to a duty to usedue care under the circumstances, breach of that duty, and resulting damages caused by the breach.19 | P a g e
  20. 20. The universe of activities that can expose a program to a negligence claim are as diverse as are facilities andare limited only by the imagination of very creative plaintiff’s attorneys.Two over-looked but important sources of liability exposure for a facility would be: • The operation of motor vehicles to transport people or supplies • The hospital’s inadequate internal procedures for selecting, assigning and monitoring employees.The consequences of negligent acts that result in damage will generally be injury or property damage.Compensatory damages are the remedy normally awarded by a court to the injured party.Slide 35. Negligent torts arise from the failure to use reasonable care under the circumstances, which are theproximate cause of recoverable damages. The “reasonable man” test” is applied. Bad results aren’t enough .Professional liability – failure to use the degree of skill and care expected of a person in the profession.Slide 36. Proving Negligence “Intent to cause harm” is not required Four things are required to be proved o Dut y o Breach of the duty o Injury or damage o Proximate causeSlide 37. Punitive Damages or “Punnies” are award for: Gross negligence - reckless disregard of the consequences to the safety or property of another or willful acts - intentional, conscious and directed toward achieving a purpose20 | P a g e
  21. 21. Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people or property Reckless behavior–similar to gross negligencePunitive damages are awarded for wrongful acts that are so severe that the law imposes additional civildamages as a deterrent. Punitive damages are awarded in addition to compensatory damages, and are notrelated to the injured party’s actual losses. Punnies may be awarded when it fails “O my God” test.Slide 38. Exceeding the Scope of PracticeAnother important liability concept for professional lies in the professional’s is scope of practice. One generaldefinition of Scope of practice is on this slide: “The range of professional activities that a licensed professionalis permitted to perform under a state licensing statute, further defined by the professional’s experienceand training.”So there are two sets of constraints on any professional’s scope of practice: the licensing statute and theprofessional’s own demonstrated abilities.Slide 39. Standard of CareEstablishing – can be set by statute or by governmental rule or by the courtMeasures of determining the standard Behavior is compared with others with similar training and experience Compared w/ locally accepted standards Compared to statutes or administrative rules Compared with professional standards published nationally21 | P a g e
  22. 22. I have a plan to alter the std. in emergency. It involves the Governor’s proclamation of a state of disaster andthe adoption of your hospital disaster plan.Slide 40. Breach of the Standard of Careliability issues center around whether the hospital and its professionals have maintained the “standard ofcare.” See Code of Ala.1975 §6-5-548 . See also Humana Medical Corporation v. Traffanstedt, 597 So. 2d 667(Ala. 1992Slide 41. Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with theresult of injury, loss, or damage to the patient.Med-Mal is subject to a special statute. See Code of Ala. 1975 §§ 6-5-480, et seq. and Code of Ala. 1975 §§ 6-2-38 and 6-5-410. Hospitals are covered as well by the med-mal statute.Slide 42 Corporate or Group Liability Corporate Negligence Vicarious liability/Respondeat superior Negligent recruitment/training /supervision Premises liabilitySlide 43. Premises Liability–“Shelterees” Plan for “sheltrees” – uninjured persons from neighborhood or brought by LE Some unattended pediatrics, some geriatric w/attendant & inherent problems Plan for minimum of 8 hours until ARC can open shelters, then plan for transport there22 | P a g e
  23. 23. Plan for sheteree animals , bites & ETC. Plan to prevent thefts – get supplemental lights and securitySlide 44. Negligent Hiring, Training, Supervision or RetentionAn employer can also be responsible for the acts of employees on grounds of negligent hiring, supervision orretention. This is direct liability – the “employer” is liable for its own failure to use due care in theemployment process. It basically holds the employer responsible for negligently placing an Employee in aposition to do harm to others.Direct liability of an employer for acts or omissions of employees based on the employer’s failure to usereasonable care in: Selecting , supervising and training workers, and Terminating their services when necessary. “No good deed goes unpunished.” The “slack” you give your employee may be the rope that hangs you.Slide 45. Respondeat SuperiorThe master is responsible for the acts or omissions of his/her servant committed “within the scope and line ofduty” when not on a “frolic and detour.” The hospital is responsible for the acts of personnel in the line ofduty, though not for “independent contractors.” Doctor is responsible for the nurse under his/her control.Slide 46. Failure to Plan - Three possibilities for negligence liability: Absence of a plan, Inadequate plan, Failure to follow plan. On July 20, 2011, a Louisiana judge gave preliminary approval on a 25 million dollar class-action lawsuit settlement agreed to by Tenet Healthcare Corporation and associated plaintiffs. Basically it boiled down to the failure of a corporation to provide adequate emergency preparedness for those for whom it was responsible. The number of class23 | P a g e
  24. 24. members is unknown, but there were 187 patients and about 800 visitors in the hospital when the Katrina hit. The bodies of 45 patients were found at Memorial after the dust settled. Some doctors subsequently acknowledged that they had hastened the deaths of patients by injecting them with drugs. No criminal charges were brought and the medical staff said they had done their best under extraordinary conditions. A commentary on the case published in July of 2011 in the Journal of the American Medical Association said that health care entities may increasingly face legal action for deficiencies in emergency preparedness. It called for clearer legal standards for hospitals "so health care entities are not compelled to prepare endlessly for every contingency." Reasonable care: probability of an event, gravity of potential injury, and burden in adequate precaution –: probability of an event, gravity of potential injury, and burden in adequate precaution – See Lacoste v. Pendleton Methodist Hospital. Supreme Court of Louisiana. 2006Slide 47. Punitive Damages – wanton and willful misconductFailure to Plan: I would submit that the standard is already set and duty to plan is established.Planning required by Joint Commission Planning required by NIMS Planning encouraged and facilitated by ADPH Plan a part of the State EOP and invoked by order of the Governor in an event.Slide 48. Judgment Proofing and DefensesThere is always some who will want to sue you, and always a lawyer who will take the case. Hide and watchthe suits in New York and New Jersey after the storm. There’s no such thing as being “law-suit proof,” rather,we speak in terms of “judgment proof.”24 | P a g e
  25. 25. Slide 49. Two Very Important Ques. Can you make the hard calls? How much risk are you willing to plan to take? Don’t be deciding in the middle of the disaster, think it out beforehand with advice from insurance agent and lawyer.Slide 50. Making Hard Calls – Principles"To Tell the Truth, the Whole truth and nothing but the Truth" -We must first study and learn the absolutetruths and never vary from them. If we devote our total allegiance to the truth, we will be free to make ethicaldecisions without fear of making a mistake, (not without making mistakes, but without fear of makingmistakes) and without fear of the consequences because, if we have followed the truth, we are notresponsible for the consequences, the truth is responsible for the consequences. It is when we do not followthe truth, that we transfer the responsibility for failure to ourselves.“There is absolute truth. In the planning process, there are certain rules, facts and principles that will have tobe applied. It is your duty to know these “truths..” before you start planning. • The "No Delta Principle"- Ethical principles do not change no matter the situation, only the application of them. Moral Relativism is a myth. • “Free at last, free at last!” You will know the truth and the truth shall make you free. • “The Principle of the Plumbline" - In the storm, we make our decisions by applying the plumb line and level of the truth. •25 | P a g e
  26. 26. "Well Sing in the Sunshine"- To the extent practicable, we pre-plan disaster decisions in the sunshine.“Casper the Friendly Ghost,” – Transparency and accountability are twins.“You’re a pane” -Transparency - To the extent possible, decisions should be made not only in the sunshinetemporally, by also visually and influentially as well. • “No Accountability Vacuum.” No matter how well intentioned we start out, if there is an accountability vacuum, we are strongly tempted to cut corners. • "Its Not About Me." We need to adopt the idea that life is not about me. That frees us from worrying about ourselves and frees us to make these plumb and square decisions.“The Nike Principle – We are all familiar with Nike’s famous slogan, “Just Do It.” Just do it NOW. Resist theurge to procrastinate. • Focus, please - The danger with “just doing it, is that one can become like a charging rhinoceros. • Truth or Consequences Everything we do has consequences. We must be aware of that fact and must be aware of the “Law of Unintended Consequences.” [However, perhaps the greater danger for the government planner is not that he or she doesn’t think through the possible consequences, but rather that he so over thinks the consequences that he is paralyzed in the decision-making process. Hence, back to the main bullet – Just Do It!Slide 51. Planning -“Bryant’s Rule” - Patton’s CorollaryHave a Plan, work your Plan, plan for the Unexpected. Plans must be simple, flexible and scalable and be madeby the people who are going to execute them, not “pointy headed intellectuals,” as Gov. Wallace would say.Slide 52. Plan “Beyond Your Wildest Dreams” Plan must be beyond your “wildest dreams.” - Janet Teer, GC, DCH System Expand your concept of “disaster,” think not 10-100 pts in the ED but 800-1500 anywhere in the facility26 | P a g e
  27. 27. Get a team on the planning process w/deadlines Plan in accord with TJC, reviewed by and filed with local EMA and ADPHSlide 53. Triage Planning - Whatever method is decided upon, may I offer several points:It needs to be decided now. Have a plan now. It is a moral failure to put off such a momentous decision untilthere is no time to reach a good decision. University of Pittsburgh’s Professor Tabery urges the use of a TriageReview Board including an administrator, physicians, nurses, clergy, ethicists, and community persons at largeto oversee the use of triage on a very frequent basis for practical as well as ethical reasons including the needto “engage the public” at pre, during and post stages of the pandemic or disaster. At this pointing the debate,the method to be used, if not agreed upon (and that is entirely possible that it will not be agreed upon,) itshould at least be formulated with wide input.Professor states that a good plan needs a Triage Officer – the initial person making these life and deathdecisions, needs to be a senior and well-trained individual, not a neophyte.Triage is not simple, it requires great skill, a certain “seasoned hardness” and perseverance. It should beconstantly reviewed during the implementation phase. The triage officer should be debriefed periodically bysuperiors and the whole process looked at on an on-going basis by the Triage Review Board.Slide 54. Modern Disaster TriageProfessor Tabery states of the ethics of triage in disaster situations that there has been or is in the process ofbecoming switch from standard medical ethics with the primary focus on individual autonomy to an ethics ofpublic health with a primary focus on the health of the community, with the overarching goal being tominimize morbidity and mortality during the pandemic. Professor Tabery then takes the Bentham/Kant debateinto the 21st Century in looking at models for triage: Utilitarian v. Egalitarian. In other words, given scarce27 | P a g e
  28. 28. resources, do the workers address the needs from the basis of for whom they can do the most good, or tothose who are in greatest need?Slide 55. Specific Template for Disaster Planning-Vent. Triage ESF 8ADPH develops a template for disaster planning and resource allocation, the Ventilator Triage. Werecommend you adopt it as your plan. It may give state agency immunity. Seehttp://www.adph.org/CEP/assets/VENTTRIAGE.pdfSlide 56. Statute of LimitationsSet time period for injured party to file lawsuitTorts -Generally 2 years Includes wrongful death, PI, and A & B Trespass – 6 yearsContracts – Generally 6 years Could include personal injury under contract See more laterSlide 57. S/L – Med Mal more or less 4 years. All actions against health care providers must be commencedwithin two years after the act or omission giving rise to the claim; provided, that if the cause of action is notdiscovered and could not reasonably have been discovered within the two-year period, then the action maybe commenced within six months from the date of such discovery or the date of learning of facts that wouldreasonably lead to such discovery, whichever is earlier. Ala. Code § 6-5-482 (1993).Although this statute of limitations is subject to tolling for minority or disability, in no event may an action bebrought more than four years after the act or omission, except that a minor who is under the age of four atthe time of the act or omission accrues has until his eighth birthday to commence an action. Id. Theconstitutionality of the statute has been upheld. Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986). A28 | P a g e
  29. 29. wrongful death action must be brought within two years after the decedents death. Ala. Code §§ 6-2-38 and6-5-410 (1993).This "statute of limitations" is not subject to any tolling provisions and applies in wrongful death cases even ifthe cause of death is medical malpractice. Cofer v. Ensor, 473 So. 2d 984 (Ala. 1985); McMickens v. Waldorp,406 So. 2d 867 (Ala. 1981)Expert Testimony - "In medical malpractice cases, the plaintiff must prove negligence through the use ofexpert testimony, unless an understanding of the doctors alleged lack of due care or skill requires onlycommon knowledge or experience.“ Monk v. Vesely, 525 So. 2d 1364, 1365 (Ala. 1988). The exception appliesonly to such situations as a foreign object left after surgery or an injury remote from the part of the bodybeing treated. Dews v. Mobile Infirmary Assn, 659 So. 2d 61 (Ala. 1995). A health care provider may testify asan expert witness in any action against another health care provider based on a breach of the standard of careonly if he or she is "similarly situated," as defined by statute. Ala. Code § 6-5-548 (Supp. 1997).This means, in part, that expert witnesses against a physician accused of negligence must be certified in thesame specialty and must have practiced within the previous year. Id.; Malcolm v. King, 686 So. 2d 231(Ala.1996).Slide 58. Damage Caps for HCAs - Code of Ala.1975 § 22-21-318(2) caps damages against a “health careauthority” at $100,000. This does not apply to a for-profit hospital nor does it apply to a purely county ormunicipal owned hospital.Slide 59. Malpractice Insurance Covers any [costs & damages the physician/ employer/ employee must pay if (s)he sued for malpractice and loses [to policy limits]29 | P a g e
  30. 30. All licensed/ certified H/C professionals should carry malpractice insurance or have hospital provided Can be an expensive type of insurance for some disciplines MDs can be thousands or even tens of thousands EMTs around $200 per year through NAEMT Nurses around $200 - $400 depending on coverage Hospital carries general liability and D & OSlide 60. Types of Med-Mal InsuranceClaims-made insurance - covers insured party for claims made only during the time period policy was in effectOccurrence insurance - covers the insured party for all injuries and incidents that occurred while policy was ineffect regardless of when claim is madeLimits – Usually $1-3 Million including defense costsSlide 61. Hospital InsuranceIn addition to med-mal, you should cover premises liability – Agree w/ co. & know what is (in)(ex)cluded. Askquestions. We are in a “soft market,” therefore you may be able to negotiate additional coverages w/ ProAssurance, Coastal or McNeary. Consider coverage for HHS/CMS civil penalties; Have high $ “umbrella” gen’lliability coverage. This may have to be re-insured.Slide 62. Goals -Altered Standards of CareThe New York State Departments of Agriculture and EnvironmentalConservation estimate that in a “moderate” pandemic influenza event, patients will most likely utilize:• 63% of hospital bed capacity;• 125% of intensive care capacity; and• 65% of hospital ventilator capacity.30 | P a g e
  31. 31. Thus, in a discussion of the ethical treatment of patients, we would be in a scarce resource situation; this leadsto a discussion of the ethical and legal basis for Altered Standards of Care. When is it permissible from anethical and legal standpoint to provide less than the care normally expected or held to be what is referred toin both the medical and legal professions as the standard of care?”When it permissible from an ethical and legal standpoint to provide less than the care normally pr traditionallyexpected or held to be what is referred to in both the medical and legal professions as the “standard of care”?Healthcare Research and Quality (AHRQ) and the Office of the Assistant Secretary for Public Health EmergencyPreparedness (OASPHEP) within the U.S. Department of Health and Human Services (HHS) convened a blueribbon working group. In their report, they state the following finding, inter alia. • The goal of an organized and coordinated response to a mass casualty event should be to maximize the number of lives saved. • Changes in the usual standards of health and medical care will be necessary to allocate scarce resources in a different manner to save as many lives as possible. • The basis for allocating health and medical resources in a mass casualty event must be fair and clinically sound. • The process for making these decisions should be transparent and judged by the public to be fair. • Protocols for triage need to be flexible enough to change as the size of a mass casualty event grows. • Staff concerns must be addressed pre-eventSlide 63. Focus Change - Altered Standards Critical : Focus Changes from doing to best for each patient to maximizing the most lives saved. The system becomes the pt. Affect current patients already in hospital for other, non-related illnesses and injuries The usual scope of practice changes31 | P a g e
  32. 32. Equipment, meds and supplies must or may be rationed Record-keeping changes but still must exist in some form.Slide 64. Emergency Management -Under Code of Ala.1975, § 31-9-2:Governor proclaims an “emergency” defined as: Enemy attack, sabotage or “other hostile action;” Fire, flood and “other natural causes” including B/T incidents, pandemics or naturally occurring events like hurricanes and tornadoes. Amendments add “Public Health Emergency”, “Public health emergency,” is defined as: “an occurrence or imminent threat of an illness or health condition, caused by Bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability. Such illness or health condition includes, but is not limited to, an illness or health condition resulting from a national disaster.”Slide 65. Governor Proclaimed EmergencyThis would activate the State Emergency Operations Plan (EOP). Specifically activation of Tab A (PandemicInfluenza) to Incident Annex A (Biological Incident Annex) . Due to the complex nature, the Department ofPublic Health has developed different operational plans to deal with mass distribution of countermeasuresand pandemic influenza. The two plans are the Strategic National Stockpile Plan (SNS Plan) and the Pandemic32 | P a g e
  33. 33. Influenza Operational Plan (PI Plan). These plans can be utilized together or separately. They complementeach other, and serve as the operational response to a biological incident in the State of Alabama. TheAlabama Emergency Management Agency will activate the State Emergency Operations Center for biologicalincidents as required by following the same process and protocol as for any other disaster impacting the state.A unified command will be established between agencies such as the AEMA, ADPH, Homeland Security, PublicSafety, Department of Ag. & Industries and/or other agencies as the situation requires. ADPH is responsiblefor oversight of Emergency Support Function (ESF) #8 —Public Health and Medical Services. Slide 66. Governor’s PowersIn addition to those earlier listed, §31-9-6 also provides authority to: Make orders, rules and regulations; To utilize all state employees; To utilize any state or local officers or agencies, granting state officer immunity to such, including volunteersSlide 67. Personal Liability Protections. Code of Ala, 1975 §31-9-16 provides that:Except for willful misconduct, gross negligence or bad faith, any “emergency management worker” (EMW) isgranted state officer immunity. Requirements for licenses to practice do NOT apply. “Emergency worker” isanyone helping out whether paid or not. The business or corp. is also an EMWSlide 68. Property Protections - § 31-9-17 provides similar liability protections apply to those permitting thestate to use their real propertySlide 69. Volunteers – Under TJC MS 4.110, disaster privileges may be granted when the hospitals emergencymanagement plan has been activated and the hospital cannot manage immediate patient care needs:33 | P a g e
  34. 34. Bylaws clearly delineate who may grant disaster or emergency privileges Medical Staff identifies how it will oversee volunteer independent staff who receive disaster privileges and how they will be identified Hospital complies with Joint Commission "protocol" for issuance of disaster privileges to independent license practitioners Consider using ADPH volunteer registry to have volunteers pre-vetted and qualified Also, such volunteers may be “state agents” and thus subject to immunity. Further state agents do not transfer liability to the agency The “guy who shows up with a chainsaw” should be routed to the Red Cross.Slide 70. The Volunteer Service Act§ 6-5-336. Volunteers Defined. A person performing services for a nonprofit organization, a nonprofitcorporation, a hospital, or a governmental entity without compensation, other than reimbursement for actualexpenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct servicevolunteer.Slide 71. The Volunteer Service Act(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of avolunteer resulting in damage or injury if:(1) The volunteer was acting in good faith and within the scope of such volunteers official functions and dutiesfor a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; and(2) The damage or injury was not caused by willful or wanton misconduct by such volunteer.34 | P a g e
  35. 35. (e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for civil damages basedupon the negligent act or omission of a volunteer, proof of such act or omission shall be sufficient to establishthe responsibility of the organization therefor under the doctrine of "respondeat superior," notwithstandingthe immunity granted to the volunteer with respect to any act or omission included under subsection (d).EN D P A RT I35 | P a g e
  36. 36. Slide 72. Part II. ContractsSlide 73. What is a Contract - Simply, an exchange of mutual promises, written or oral to do legal acts.Slide 74. Types of Instruments Contracts Grants Benefit Agreements Amendments Purchase OrdersSlide 75. Elements of a contract Offer, Acceptance, Consideration Detrimental Reliance “Boiler plate” “In writing”36 | P a g e
  37. 37. Slide 76. Contract Suggestion - DCHJust in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” formain and alternate sites. Make sure supplier contracts and contractors have connections to get your supplies,like generators, in a hurry and can handle volume. Make sure it’s in writing or at least followed up with a letterstating your understanding of the verbal agreementSlide 77. Amendments – Use the same formalities as the instrument, which it amends, and the same processas the instrument that it amends.Slide 78. Mutual Aid Agreements.What is Mutual Aid?Types of Mutual AgreementsState Emergency Mutual Aid Compacts (EMAC)EMAC in the Broader SenseCost Reimbursement IssuesCharacteristics of Private AgreementsSlide 79. Mutual Aid AgreementsMutual aid can cover a wide range of activities and arrangements between numerous different levels ofgovernment. Frequently, mutual aid agreements are not only in writing but also authorized by speciallegislation.For example, in 2004 Congress enacted special legislation to facilitate mutual aid between jurisdictions in theNational Capital Region; these arrangements had been hindered by the significant differences in tort liability inthe State of Maryland, the Commonwealth of Virginia, and the District of Columbia.37 | P a g e
  38. 38. The statutory solution here was to provide that the law and court system of a responder’s home jurisdictionwould apply to lawsuits against the responder and his or her employing jurisdiction.A key aspect of mutual aid agreements is that they do not require that assistance be provided. Nogovernment can commit to send resources elsewhere in advance without knowing whether those resourcesare required to handle its own problems.Slide 80. Mutual Aid: Key CharacteristicsSome mutual aid agreements do not provide for compensation. These agreements normally cover small-scaleincidents requiring limited resources and a relatively short duration. For emergency response, however, thecost of providing extensive resources over a significant period of time becomes very significant.If the activities performed under a mutual aid agreement are “emergency measures” that would otherwise beeligible for federal reimbursement under the Stafford Act, then the costs charged under the mutual aidagreement would also be reimbursable – but only if the mutual aid agreement is in writing and requirescompensation. See FEMA Public Assistance Policy No. 9523.6 “Mutual Aid Agreements for Public Assistance.”(September 22, 2004).Litigation over mutual aid agreements is rare. Most cases have involved employees injured during a response,as a result of legal uncertainty over whether worker’s compensation limitations applied and which jurisdictionwas responsible.In the absence of dispute resolution provisions in the mutual aid agreement, disputes between requesting andresponding jurisdictions may be litigated in a court with jurisdiction over the parties and subject matter. Forexample, original jurisdiction over disputes between states is in the United States Supreme Court.38 | P a g e
  39. 39. The federal EMAC enabling law provides that state laws must provide that any employee of the respondingjurisdiction is deemed to be licensed in the requesting jurisdiction. Alabama complies with this.Slide 81. Intrastate Mutual AidThe National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement toassist states in reviewing their existing legislation.http://www.scd.hawaii.gov/nims/model_intrastate_mutual_aid_legislation.pdfPer that document- 27 States had formal agreements as of February 2004, the latest data I could find.Those states include among others: AL, FL, GA, and MS. I’m sure by now, all are compliant because to beNIMS compliant, a state must have such agreements in place. If not, it cannot receive ASPHER funding. Intrastate Compact applies to mutual aid provided by governmental entities within the state (for example: city-to-city; county to city, county to county, etc.) Draft ‘Model Intrastate Mutual Aid Agreement’ available to states When enacted, assures a written mutual aid agreement available covering local communities when governor declares emergency Includes compensation provisionsSlide 82. The MOU- Alabama ProspectiveAlabama Hospital Mutual Aid MOU (59 sigs)- Seehttp://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.docMOUs define rights and responsibilities only: Parties: ADPH, hospitals, other providers, responder communities, other regional parties39 | P a g e
  40. 40. Disaster – proclaimed, declared or not Limitations – players and resources The need: identifying & providing resources, personnel and & care and moving patientsSlide 83. The MOU - Purpose • Purpose - the Network was created and organized to identify resources to support the coordination of local, state, and multi-state resources to respond to an emergency or disaster, both natural and man- made, that exceed the resources of one or more Network Participants. • The Network identifies, utilizes, and participates with a variety of health care facilities, specialty care, tertiary care and general hospitals as well as other resource centers such as private health care providers and clinics, and home health agencies; • This agreement and relationship among Network Participants is intended to augment, not replace, each Network Participants emergency operations plan (EOP). This document does not replace but rather supplements the governing law, rules and regulations and procedures and protocols governing interaction with, and among, other organizations during a disaster (e.g., EOP of the State, emergency management agencies, law enforcement agencies, the local emergency medical services, state and local public health departments, fire departments, and nongovernment disaster response agencies (NGO) such as the American Red Cross.Slide 84. MOU – Not ObligatoryNo party is legally obligated to accept patients or send staff, supplies or resources when to do so wouldcompromise its local service mission. This agreement is entered into voluntarily and the Network Participantsare not obligated to offer any support or assistance; however, Network Participants agree, in the event of aDisaster, to use reasonable efforts to make clinical staff, medical and general supplies, includingpharmaceuticals, and biomedical equipment (including, but not limited to ventilators, monitors and infusionpumps) available to each another. Each Network Participant shall be entitled to use its reasonable judgment40 | P a g e
  41. 41. regarding the type and amount of staff, supplies and equipment it can provide without adversely affecting itsown ability to provide essential services.However, participants agree to try to assist and to advise of availability of resources through IncidentManagement SystemsThe purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources throughthe EOCsSlide 85. MOU – Normal EMA ChainRequests for mutual assistance follow the normal process of requesting assistance through the localEmergency Management Agency and, if appropriate, the local Emergency Management Agency will escalatethe request to the appropriate Region state Emergency Management Agency and if needed the stateEmergency Management Agency may escalate requests at the Federal level.The Network, through the Emergency Operations Centers will coordinate efforts between NetworkParticipants and Region state Emergency Operations Centers to ensure appropriate transfer of pediatricpatients and optimal utilization of pediatric health care resources within the Region.Each Network Participant signatory will identify a point of contact who is familiar with the Network,hereinafter known as a “Designated Representative,” who has operational authority to act as a liaison with theNetwork during any revisions of this Network Memorandum of Understanding and to communicate with theNetwork and the appropriate individuals within the representative’s own organization in the event of aDisaster. The Designated Representative or delegate individual shall attend meetings and conferencesscheduled by the Network to discuss issues related to this Network and if needed, to revise the Network41 | P a g e
  42. 42. Memorandum of Understanding. The Designated Representative or delegated individual shall act as a liaisonwith representatives of the Network Participants in the event of a Disaster.The Network Participants agree to communicate and coordinate their response efforts via their DesignatedRepresentatives who have operational authority to commit the resources of the Participant as specified in theParticipant Emergency Operations Plan.In the event of a Disaster, Network Participants agree to inform their non-employee medical staff members ofany requests for assistance and offer them the opportunity to volunteer their professional services. NetworkParticipants shall cooperate with each other to provide in a timely manner the information necessary to verifyemployment status, licensure, training and other information necessary in order for such volunteers to receiveemergency credentials.Slide 86. MOU Reimbursement, Non-Exclusivity, WithdrawalNetwork Participants cannot guarantee reimbursement for assistance, facilities, supplies or other types ofsupport. However, to the extent that reimbursement may be available, every effort will be made to obtainsuch reimbursement through federal or other monies as they become available as long as the NetworkParticipant is not reimbursed for the medical assistance, facilities, supplies or other types of support byinsurance, Medicare, Medicaid, or other third party payor.To ensure effectiveness, Network Participants will be given an opportunity to participate in periodic Networktraining exercises (exercise and drills) simulating disaster events affecting the Region.Network Participants bear no liability or responsibility for any claim, loss or damage arising out of or inconjunction with voluntary participation in the Network.42 | P a g e
  43. 43. Nothing in this agreement shall be construed as limiting the rights of the Network Participants to affiliate orcontract with any other entity or operating an entity or other health care facility on either a limited or generalbasis while this agreement is in effect.This Memorandum of Understanding may be canceled at any time by any party by giving a thirty (30) daywritten notice to the other parties. However, if no such notice is given, the Network agreement remains ineffect in perpetuity.Slide 87. MOU - LiabilityParticipants assume no liability merely by becoming a signatory to the MOUHowever, participants may be liable for acts and omissions of their staff in performance under the MOU orgovernmental ordersAlso, in following their pre-approved plan, in case of Declaration by Governor, there may be certainimmunities for staffSlide 88. Transportation/EMS ContractsOut of state ambulances are forbidden to make point to point runs within the state.Otherwise, state EMS rules allow full use of ambulances from out of state into the state.Rules could be waived. Even so, would there be enough ambulances in a disaster if all hospitals contract w/same EMS ambulance Co? What other vehicles could be used? Common carriers School & municipal bussesSlide 89. Transfer Agreement Issues Got appropriate transfer agreements? Could they go out of state perhaps?43 | P a g e
  44. 44. To what types of facilities? Do you have agreements with carriers? Are there backups for everything? Could your EMAC Agreements incorporate cooperation on “transfer agreement” language and use of resources? Security & supplies of personnel and patients? Records be transferred electronically (EMR)?Slide 90. Private AgreementsThe example of mutual aid agreements is the “Metropolitan Area Hospital Compact” of the Twin Cities. It doesthe following: • specifies that the agreement is not a legally binding contract; rather it outlines a general policy of cooperation and coordination in the event of a disaster. • emphasizes that the agreement is voluntary. • designates a mechanism through which signatory organizations can communicate with one another to request aid in the event of a disaster. • requires a signature of the organization’s representative.It addresses: • Communications including liaison officers, EOCs, includes a joint public information center provision • Forced evacuation – distributes patients equally • Cooperates with NDMS activation • Requires reporting of bed capacity. (In Alabama use AIMS ) • Discusses auxiliary locations in sever disaster and how each hospital will contribute personnel to man such a facility44 | P a g e
  45. 45. • Discusses sharing of staffSlide 91. Contractual Liability - A contract is just a legally enforceable promise between two or more parties.They don’t have to be big legal documents drafted by lawyers. Some contracts must be in writing, but otherscan be verbal, or scribbled on the back of a napkin. The elements generally recognized as creating a contractare an agreement between the parties and some consideration - something of value, not necessarily money-that is exchanged by the parties. However, remember the rule above, “if it ain’t wrote down, it didn’thappen,” so, get it in writing if at all possible.So how can contractual liability come into play for programs? It can surface in several ways, which are listedon this slide. One of the most important exposures is assuming liability from the other party in a contract, Forexample, a facility may be asked to agree in a contract or letter of agreement that it will be responsible for anyliability arising from the activities of its volunteers. This would be the effect of an indemnification and holdharmless clause in the letter of agreement. Or a response partner may require the program to have insuranceit doesn’t have, leaving it in breach of contract for failing to have it.Slide 92. Avoiding/Reducing LiabilityRisk management is approached on two levels: Agency level and Individual level.Avoiding liability means not being held liable in court (it does not mean “can’t be sued”)Slide 93. Internal Practices to Reduce Liability Risk – Provide for Credentialing and assignment to appropriate duties Criminal background checks Verifying necessary licenses (professional, driving, watercraft)45 | P a g e
  46. 46. Clear activation and deactivation procedures Employee orientation, training and exercises Employee identification badgesSlide 94. Internal (2) Written partnership agreements stating roles & responsibilities Written engagement/utilization records Procedures for keeping patient treatment notes Rules of conduct and grounds for dismissal Communications procedures Post-incident debriefingSlide 95. Practical Advice – Liability, and Out of State ProvidersDisaster Privileges Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge by staff member) Assign provider to area qualified to work Abbreviated orientation program for emergency personnelBrief on state-specific liability issues such as Licensure, Good Samaritan, and Med-Mal Laws. Consider usingADPH volunteer system to vet out of state personnel.Slide 96. See AlsoHospitals and Community, Emergency Response - What You Need to Know,Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)TJC Standards on Hospital Emergency Planning: CAMH/Hospitals46 | P a g e
  47. 47. Slide 97. More Resources - TJCHealthcare at the Crossroads TJChttp://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2F%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3QSlide 98. Example Hospital TJC PlanAn example plan is found at: http://www.uhb.org/pnp/dsplan.htm. This is from the State University of NewYork Hospital System.Slide 99. Finished!Slide 100. See “ARRTC,” a download on Slideshare 7 <slideshare.net>See also on Facebook.47 | P a g e