For A Copy of Presentation        and the Text► See “ARRTC,” a download on Slideshare   7  <slideshare.net>► See also my F...
ARRTC – 2013Judgment – Proofing   and Contracts      John R. Wible, J.D.   General Counsel (Retired) Alabama Department of...
Disaster Comes in Many         Forms         John R. Wible, 2013   3
It Could Be AnywhereComplete Evacuation of NYU Langone Medical Center, 10/30/12                        John R. Wible, 2013...
New York Patients       TransferredPatient transferred from NYU Langon 10/30/12                  John R. Wible, 2013      ...
But, Even Before Then . . .           John R. Wible, 2013   6
DCH Could Have Been Hit-     What If ?????          John R. Wible, 2013   7
Government Authority to Act  in Emergencies: Model►   Legal authority is at its    peak at the emergency’s    peak►   As c...
-The Eye of the Storm-What Really Happens in a        Disaster          John R. Wible, 2013   9
Disaster/Planning► Disaster -Any emergency that disrupts  normal community function causing concern  for the safety of its...
So, what really happens?► How   do people’s relationships change?► Do people think and react differently?► Are the consequ...
Effects on Victims and StaffPsychological, physiological and physiological Symptoms:► Irritability or anger, blaming or de...
What if Power is Lost?Also lost are:► Sewage / water systems► Lights/Cooling and heating elements► Elevators and automatic...
Other Contemplated Losses► Food, water and utensil supply► Shortages of meds, disposables and DME     You should anticipa...
Don’t Be Bait for Liability► Federal Issues► Criminal Issues► Administrative Issues► Civil Issues   Torts   Contracts   ...
Federal Law Causes of Action  ► 1963 Civil Rights Act violations     ADA, ADEA     Section 504, Rehabilitation Act  ► HI...
The Health Portability andAccountability Act (HIPPA)  (Amended by HITEC)          John R. Wible, 2013   17
The “Golden Rule of     Documentation”If it ain’t wrote down it didn’t             happen!The way it is wrote down is    t...
Confidentiality-     Access to Records► General rule – (Privacy Rule) All patient  information is strictly confidential. Y...
Imperatives for Protecting PHI► Improvements in health care and community  health require responsible sharing of some  PHI...
Methods to Avoid Liability                 -DCH to media and► Have only one or two voices  the public, IE., thousands of c...
Disaster Applicability         DHHS Says:► Responding  agencies will need to get PHI to  respond to emergencies► Therefore...
EMTALA► Section 1867, Social Security Act► Must triage and stabilize then treat or transfer► What if you are in a disaster...
WHERE DOES EMTALA                      APPLY?   Outpatients                                                 “I have a med....
Evacuation Plan – Have             One        And Stick to It► Does it violate EMTALA?► Plan w/ other facilities to take p...
OSHA in a Disaster – Plan!► Have pre-emergency drills implementing plan,  practice sessions using the ICS System► Establis...
Fair Labor Standards Act► Plan should include use of reserves and  time off where possible► Time off may be given later or...
Pure Food, Drug & Cosmetic            Act► Be careful about transferring  legend drugs to unlicensed                aid  s...
Licensure Issues         – Bed Capacity► Code of Ala.1975   Chapter 21 of Title 22  requires you to be designated with  ma...
The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements  related to emergency management► The hospital has Em...
Criminal ComplaintsIt can happen – just ask Dr. Pou in N.O. Trespass Assaults and  Batteries Theft of property Convers...
Civil Liability, Lawsuits,Defenses and ImmunitiesTortsContractsDefensesImmunitiesInsuranceLoss Prevention           ...
Torts► Anactionable wrong under the law   Negligent torts                                             Not This   Intenti...
Types of Torts► Malpractice and professional liability► General tort liability – negligence for an act or  omission   Eco...
NegligenceThe failure to act or perform in a particular situation as any other reasonable prudent dispatcher with similar ...
Negligent Torts Examined► Negligent  torts arise from the failure to  use  reasonable care under the circumstances,  causi...
Proving Negligence►“Intentto cause harm” is not required►Four things are required to be proved   Duty   Breach of the du...
“Punnies” Awarded for:► Gross   negligence - reckless disregard of the  consequences to the safety or property of  another...
Exceeding the Scope of Practice  The range of professional activities that a    licensed professional is permitted to    p...
Standard of Care► Establishing– can be set by statute or by  governmental rule or by the court► Measures of determining th...
Breach of the Standard of                  Care► The  standard of care for a professional is  the “reasonable person” negl...
Medical Malpractice► Malpractice:     professional misconduct or  demonstration of an unreasonable lack of  skill with the...
Corporate or Group Liability Corporate   Negligence Vicarious liability  /Respondeat superior Negligent recruitment/tra...
Premises       Liability–“Shelterees”► Plan for “sheltrees” – uninjured persons from  neighborhood or brought by LE► Some ...
Negligent Hiring, Training,            Supervision or Retention► Direct       liability of an employer for acts or omissio...
Respondeat Superior The  master is responsible for the acts or  omissions of his/her servant committed  “within the scope...
Failure to Plan   Three possibilities for negligence liability:     Absence of a plan     Inadequate plan     Failure ...
Who are the Potential Plaintiffs?     And who will represent them?              John R. Wible, 2013   48
JUDGMENT PROOFING   AND DEFENSES      John R. Wible, 2013   49
Two Very Important Ques.► Can you make the hard calls?► How much risk are you willing to plan to  take?                   ...
Making Hard Calls - Principles ► To tell the truth, the whole truth   and nothing but the truth    No Delta      Principl...
Planning -“Bryant’s Rule”      Patton’s Corollary► Have   a Plan► Work your Plan► Plan for the Unexpected                 ...
Plan “Beyond Your   Wildest Dreams”► Plan   must be beyond your “wildest dreams.”   -Janet Teer, General Counsel DCH Syst...
Triage Planning► Get a Plan. See “Bryant’s Rule”► Get a Triage Review Committee   Plan   Oversee   Evaluate post-event►...
Modern Disaster Triage► In disasters there is a switch           from  standard medical ethics             with the  prima...
Specific Template for    Disaster Planning-Vent.         Triage ESF 8► ADPH    develops a template for disaster  planning ...
Statute of Limitations► Settime period for injured party to file lawsuit► Torts -Generally 2 years   Includes wrongful de...
S/L – Med Mal►2 years from reasonable discovery► No more than 4 years from occurrence► Minors – 4 years after discovery or...
Damage Caps for HCAs► Code of Ala.1975 § 22-21-318(2) caps  damages against a “health care authority” at  $100,000► Does n...
Malpractice Insurance► Covers   any [costs & damages the physician/  employer/ employee must pay if (s)he sued  for malpra...
Types of Med-Mal Insurance► Claims-made      insurance - covers insured  party for claims made only during the time  perio...
Hospital Insurance► In addition to med-mal► Should cover premises liability – Agree w/ co. &  know what is (in)(ex)cluded....
Goals -Altered    Standards of Care                                           Goal!► Maximize   the number of lives saved....
Focus Change - Altered            Standards► Critical  : Focus Changes from  doing to best for each patient              t...
Emergency ManagementUnder Code of Ala.1975, § 31-9-2: Governor proclaims an “emergency” defined as:   Enemy attack, sabo...
Governor Proclaimed          Emergency► Activationof State EOP► Tab A (Pandemic Influenza) to Incident  Annex A (Biologica...
Governor’s Powers In addition to those earlier listed, §31-9-6  also provides authority to: Make orders, rules and regul...
Personal Liability Protections  Code of Ala, 1975 §31-9-16 provides    that:  ► Except for willful misconduct, gross    ne...
Property Protections§ 31-9-17 provides similar  liability protections apply to  those permitting the state to  use their r...
Volunteers► PrivilegingProfessional Staff► Consider using ADPH volunteer registry to  have volunteers pre-vetted and quali...
The Volunteer Service Act              § 6-5-336. Volunteers                Defined.              A person performing serv...
The Volunteer Service ActThe volunteer is immune from civil liability► in any action on the basis of any act or  omission►...
CONTRACTS  John R. Wible, 2013   73
What is a ContractSimply, an exchange of  mutual promises.► Written or oral► To do legal acts                  John R. Wib...
Types of Instruments► Contracts► Grants► Benefit► Agreements► Amendments► Purchase    Orders                       John R....
Elements of a contract► Offer,► Acceptance,► Consideration► Detrimental  Reliance► “Boiler plate”► “In writing”   (Sorry, ...
Contract Suggestion - DCH► Just in time contracts – work with contractor,  IE., Cardinal, to establish pre-packaged kits, ...
Amendments► Same formalities as the instrument which it  amends► Same process as the instrument which it  amends          ...
MUTUAL AID          AGREEMENTS► What  is Mutual Aid?► Types of Mutual Agreements► State Emergency Mutual Aid Compacts  (EM...
Mutual Aid: Key►            Characteristics    Generally by written agreement►  Agreements cover:   Activation Procedures...
Mutual Aid: Key           Characteristics►    Compensated vs. donated     Most current mutual aid agreements do      not ...
Intra state Mutual AidThe National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement ...
The MOU- Alabama             Prospective► Alabama   Hospital Mutual Aid MOU (59 sigs)- See  http://www.adph.org/CEP/assets...
The MOU - Purpose► Purpose  - to identify interested parties and their  resources to support the coordination of local,  s...
MOU – Not Obligatory► No  party is legally obligated to accept patients or  send staff, supplies or resources when to do s...
MOU – Normal EMA Chain► Participants follow usual system of going through  the local EMA including EMAC► EMA should be tas...
MOU Reimbursement, Non-  Exclusivity, Withdrawal► No   reimbursement is guaranteed but network  will facilitate reimbursem...
MOU - Liability► Participants  assume no liability merely by becoming  a signatory to the MOU► However, participants may b...
Transportation/EMS Contracts► Out   of state ambulances are forbidden to make  point to point runs within the state.► Othe...
Transfer Agreement Issues► Got appropriate transfer agreements?► Could they go out of state perhaps?► To what types of fac...
Private Agreements                – Should Address►   Voluntary nature, not a legally                  Reporting of bed c...
Contractual Liability► Failure   to achieve a promised result► Failureto use a standard of care to which you  have committ...
Avoiding/Reducing               Liability►Risk management is approached on two levels   Agency level and   Individual le...
Internal Practices to Reduce               Liability Risk► Credentialing and assignment to appropriate  duties► Criminal b...
Internal Practices to Reduce      Liability Risk (2)► Written partnership agreements stating  roles & responsibilities► Wr...
Practical Advice – Liability,   Out of State Providers► Disaster   Privileges   Photo ID, copy of current license, proof ...
See Also► Hospitals and Community, Emergency  Response - What You Need to Know,  Emergency Response Safety Series, U.S.  D...
More Resources - TJCHealthcare at the Crossroads TJC http://www.google.com/url? sa=t&rct=j&q=&esrc=s&source=web&cd=2& sqi=...
Example Hospital TJC PlanAn example plan is found at: http://www.uhb.org/pnp/dsplan.htm . This is from the State Universit...
Finished – At Last!       John R. Wible, 2013   100
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  • See “ARRTC,” a download on Slideshare 7 &lt;slideshare.net&gt; See also on Facebook.
  • 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 and firemen 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.
  • Tuesday morning, Brooklyn&apos;s Coney Island Hospital relocated about 180 patients after a blackout Monday and being down to a single generator Tuesday morning, according to . . . a spokesman for the New York City Health and Hospitals Corp.   &quot;We&apos;ve had significant challenges at many of our hospitals and health care facilities,&quot; Mayor Michael Bloomberg said at a press conference Tuesday. &quot;Fortunately, as of now there has been no storm-related fatalities at any them.&quot; 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]spokesman . . .   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 spokeswoman 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 Camden&apos;s 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 Pennsylvania&apos;s 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 spokeswoman 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 spokesman. McCready Memorial Hospital in Crisfield on the state&apos;s Eastern Shore isn&apos;t taking any additional patients because it&apos;s 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 spokeswoman for the Virginia Department of Health. She also reports that the department doesn&apos;t expect flooding to pose any difficulties for the state&apos;s health care facilities.
  • A horrific storm system that killed more than 300 people in seven states across the South is one of the worst the country has experienced in more than four decades.   In the 24-hour period that ended at 8 a.m. CT April 27, 2011, 163 tornadoes had been reported by eye witnesses. 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 its destruction. Officials are on the ground Thursday assessing the damage and delivering emergency services and supplies to the victims of the storm.   Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228 people in 19 counties had died in Alabama. A state of emergency was declared by the president shortly after the storms raged through.
  • The massive tornado left Tuscaloosa&apos;s two hospitals swirling in activity. One, in direct line of the storm, also suffered damage from the twister. &quot;We&apos;re estimating around 600 were treated at DCH Regional Medical Center,&quot; said Brad Fisher, DCH spokesman. 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 hours of morning. More than 100 patients per hour flooded their doors immediately after the storm, Fisher said. The hospital admitted 92 people and reported five dead as of Thursday morning. &quot;Our numbers will increase today,&quot; Fisher said. &quot;Business in the ED is steady, so we&apos;re not done.
  • Governmental Authority Model - At height of emergency – authority is at its peak. Broad discretion exists under both state and federal laws for the executive – including police and public health officials – to take actions deemed necessary to reduce imminent threats to life, property, and public health and safety When the crisis is brought under control – when there are no longer imminent threats to life, property, and public health and safety requiring immediate action, the scope of authority is reduced – as need to protect other values and individual rights, resume normal roles. Further, once immediate threats to life and to public health, safety, and property are addressed, all those involved in a response will necessarily be faced with the challenge of paying for the loss and damage that has been sustained. So the role of the lawyer becomes more and more important as the emergency moves from the crisis to the recovery phase. Legal issues are still very important even at the height of a crisis – and choices made during crisis moments can have a substantial impact on how losses and damages are paid for after the event.
  • The 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 Medical Center in New Orleans in the days following Hurricane Katrina. The three medical staffers were each arrested for second-degree murder. The three are accused of injecting patients with lethal doses of Morphine and Versed. &quot;This is not euthanasia. This is homicide,&quot; Attorney General Charles Foti said. &quot;We&apos;re talking about people who pretended that maybe they were God.&quot; … The trio allegedly intentionally killed multiple patients by administering or helping administer lethal doses of the two drugs. The investigation was sparked following Katrina and eventually led to a Lifecare Hospitals statement that reported possible euthanasia of patients at Memorial Medical Center. [The Hospital stated:]&quot;I believe this case is a strong one and that these charges are based on sound legal and 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.&quot; … [A]ccording to LSU associate sociology Professor Sung Joon Jang, [he] believes the three accused were likely trying to help and meant no ill harm. &quot;Their motive was to do something good,&quot; Jang said. &quot;At the time it was probably their best judgment. Of course when you do something like this, it brings in the moral and physiological principles and legal questions that must be addressed. No matter what their decision, their motives could have still been questioned.&quot; … Jang believes the accused three were acting out of compassion, but in Louisiana, euthanasia is against the law. &quot;The fact is, the law was broken and it is my job to seek justice for the victims in this case,&quot; [Louisiana Attorney General Charles] Foti said. &quot;It gives me no pleasure to report what happened here today and my heart goes out to the families and loved ones of those victims.&quot; In January 29, 2007, the staff members were fired from their jobs. In March of 2007, their case was presented 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. Louisiana subsequently changed the law to provide more protection for professions in such exigent situations.
  • Disaster -Any emergency that disrupts normal community function causing concern for the safety of its citizens. Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death that accompanies a disaster. Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in the hospital.
  • Obviously, we have now turned our attention from the theoretical to the practical – in fact to the deadly serious. It is here where have “quit preachin’ and gone to medlin,’” as Governor Mark Sanford of South Carolina was accused of doing when he attempted to initiate reforms in state government. A number of questions come to mind and these questions will underlie the remainder of the paper. What really happens in a disaster? 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, vel non ?  
  • What happens in a disaster? CERT Training from FEMA tells us what we really already know. Disaster survivors normally experience a range of psychological and physiological reactions, the strength and type of which depend 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 there is no escape, which sets the stage for panic; and the emotional strength of the individual. Studies have shown that their reactions go through stages and that their reaction to workers vary according to the stages from exuberant following of instructions to disbelief and disgruntlement. Psychologically, they may be subject to certain physiological and physiological Symptoms including: irritability or anger; denial; loss of appetite; self-blame; blaming others; mood swings; headaches; chest pain; isolation; withdrawal; diarrhea, stomach pain; nausea; fear of recurrence; hyperactivity; feeling stunned, numb, or overwhelmed; increase in alcohol or drug consumption; feeling helpless; nightmares; concentration and memory problems; inability to sleep; sadness, depression, grief; fatigue and low energy. For our purposes, we know that disaster workers may go through many of the same symptoms leading to the conclusion that in the end, they may become “stressed out” and may make bad choices and the wrong decisions.
  • Usual 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 Establish emergency communications area / EOC and a command structure (NIMS) Establish a plan to communicate information to patients and families and other facilities
  • Identify reporting relationships in hospital&apos;s incident command structure 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, 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 Management of hazardous waste and materials 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 batt. 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 have been initiated Communications with area health care organizations, regarding contact information, resources and assets that are available to be shared Communications about patient names with area health care entities and third parties State Department of Health, Police, FBI, etc.
  • Don’t Be Bait for Liability. Liability can come by many different routes. Federal Issues Criminal Issues Administrative Issues Civil Issues Torts Contracts
  • The Centers for Medicare and Medicaid Services (CMS,) the Inspector General of the United States Department of Health and Human Services (IG/HHS,) the Department of Justice, Medicare and Medicaid Fraud and Abuse Division (DOJ) and any other combination of alphabet-soup regulatory agencies at the federal and state level when they either refuse to pay you or threaten to investigate you for fraud. Affected federal laws can include: Americans with Disabilities Act, Rehabilitation Act of 1973, Section 504, EMTALA, HIPAA, Pure Food, Drug and Cosmetic Acts (medicines and medical devices,) the &quot;Common Rule&quot; involving research with human subjects, Wage and Hour (FLSA), &quot;80 hour a week rule for medical residents&quot; rule, OSHA, CMS reimbursement under Medicare and Medicaid and the Stafford Act to name a few.
  • HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of 2009
  • If it ain’t wrote down . . . it didn’t happen! The way it is wrote down is the way it happened regardless of the way it happened
  • All patient information is strictly confidential. However – exceptions in emergency situations. 45 CFR 164.512 – emergency personnel and LE
  • Improvements in health care and community health require responsible sharing of some PHI In the absence of privacy protections, patients and others may avoid some clinical, public health and research interventions to their detriment Individual privacy protections must be balanced with legitimate community uses of PHI, i.e., health research and public health
  • 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 superiors Use AIMS system of pt. tracking (DCH example) Train employees to funnel all pts. To a single or one of specified triage sites At triage, use AIMS tracking module instead of regular EMR – It only IDs pt. and tells status. No PHI to inadvertently release 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. Technically, even the name of the ot.s is PHI, but that’s minor. 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 Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central clearing house Follow up pts later with your EMR Document, document, document
  • Responding agencies will need to get PHI to respond to emergencies Therefore a covered entity can disclose PHI to emergency authorities in such an event. Attempt to have prepared systems that minimize non-emergency disclosures See 45 CFR 164.512(b) public health activities.
  • Section 1867, Social Security Act Hospital must triage and stabilize then treat or transfer What if you are in a disaster? DHC found the Statewide Trauma System to be very helpful Plan to set up emergency triage sub-stations Have transfer agreements If in a true disaster, unlikely HHS will pursue Let’s first define EMTALA. What’s an Emergency? The definition provided under the statute is: &quot;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 &quot;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.&quot; As to whether turning someone away constitutes an EMTALA violation, health care providers concerned about EMTALA compliance and litigation exposure will naturally ask &quot;Is this a violation?&quot;, 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 &quot;is a violation&quot;. 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.
  • Does it violate EMTALA? Plan w/ other facilities to take pts. Plan w/city, county and schools to use vehicles and (importantly) drivers N.O. didn’t evacuate in part because though they had busses, they didn’t have drivers who had deserted 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.
  • Have pre-emergency drills implementing plan, practice sessions using the ICS System Establish lines of authority and communication between incident site and hospital personnel Designate disaster team including ED MDs, nurses, aides and support personnel w/PPE Designate alternate sites Post-emergency critique of the hospital&apos;s emergency response – OSHA Pub. 3152 (1997)
  • Plan should include use of reserves and time off where possible 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% reimbursement Please note the equivocation in the use of italicized words.
  • Be careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or pharmacist Plan a work around of this. Work with city to have pre-established aid stations w/pharmacist coverage Pharmacists can be obtained and dispatched through ADPH volunteer network
  • Code of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximum bed capacity This may be exceeded in emergency by contacting ADPH Bureau of Health Provider Standards for a temporary waiver Probably can be done through AIMS This will not be your biggest problem
  • On Nov. 24, 2008, TJC imposed requirements related to emergency management The hospital has Emergency Operations Plan The hospital engages in planning activities prior to developing its written EOP The hospital prepares for how it will: communicate, manage resources, provide security, staff, and grant privileges to other practitioners during emergencies Simple answer: DO IT!
  • Criminal Complaints – It can happen – just ask Dr. Pou in N.O. Criminal charges could be brought alleging, inter alia, trespass, assaults with or without batteries, theft of property, conversion and offenses involving sexual misconduct.
  • Torts Contracts Defenses Immunities Insurance Loss Prevention
  • An actionable wrong under the law Recoverable in a civil action against you Filed in Circuit Court You must hire a lawyer to defend yourself
  • Malpractice and professional liability General tort liability – negligence or an act or omission Economic loss Non-economic loss Gross negligence, wanton misconduct, bad faith Vicarious liability Respondeat superior Negligent recruitment/ training/supervision Premises liability
  • The failure to act or perform in a particular situation as any other reasonable prudent EMT with similar training 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 law rather than in statutory law. But however it is defined, negligence comes down to a failure to use reasonable care under the circumstances, or to act as a reasonable person would under the same circumstances. The operative word is “reasonable.” The standard is essentially the same for a professionals. The difference is that the “reasonable person” that a professional 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 for negligence. There must also be a lack of reasonable care. The elements of a negligence claim are also a matter of state common law. They are fairly similar among the states, but there may be some differences so you need to be familiar with your state’s law. Basically they come down to a duty to use due care under the circumstances, breach of that duty, and resulting damages. The universe of activities that can expose a program as diverse as a MRC to a negligence claim is limited only by the imagination of very creative plaintiff’s attorneys. Two important sources of liability exposure for a MRC would be: The operation of motor vehicles to transport people or supplies The EMS’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. Punitive damages may also be awarded if the defendant’s negligence exceeds “normal” negligence according to the state’s specific requirements. Negligent torts arise from the failure to use reasonable care under the circumstances, causing 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
  • “ Intent to cause harm” is not required Four things are required to be proved Duty Breach of the duty Injury or damage Proximate cause
  • Punitive damages are awarded for wrongful acts that are so severe that the law imposes additional civil damages as a deterrent. Punitive damages are awarded in addition to compensatory damages, and are not related to the injured party’s actual losses. To recover punitive damages, the injured party generally must claim gross negligence, willful or wanton acts, or reckless behavior, depending on the requirements of the state’s law. It is important to know what these terms mean because the federal Volunteer Protection Act, as well as many state volunteer protection acts, do not protect volunteers against wrongful acts that rise to this level. It is understandable that legislatures do not want to exempt volunteers from responsibility for this level of wrongful act. But at the same time, this exemption opens a big door in the protection awarded hospitals.
  • Another important liability concept for professional Professional’s is scope of practice. One general definition of Scope of practice is on this slide: “The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further defined by the professional’s experience and training.” So there are two sets of constraints on any professional’s scope of practice: the licensing statute and the professional’s own demonstrated abilities. Some states are more specific than others, so it certainly pays to know what your state statute says.
  • Establishing – can be set by statute or by governmental rule or by the court Measures 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 nationally I have a plan to alter the std. in emergency. Involves the Governor’s proclamation of a state of disaster and the adoption of your hospital disaster plan.
  • Another important liability concept is professional standard of care, which is basically just the “ reasonable person” negligence standard modified for a professional services environment . Standard liability issues center around whether the EMT has maintained the “standard of care.” See Code of Ala.1975 §6-5-548 . See also Humana Medical Corporation v. Traffanstedt , 597 So. 2d 667 (Ala. 1992).
  • Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient Negligence: unintentional action that occurs when a person performs or fails to perform an action that a reasonable person would or would not have committed in a similar situation Med-Mal is subject to a special statute Code of Ala. 1975 §§ 6-5-480, et seq. Code of Ala. 1975 §§ 6-2-38 and 6-5-410 Hospitals are covered as well
  • Corporate or Group Liability Corporate Negligence Vicarious liability/Respondeat superior Negligent recruitment/training/supervision Premises liability
  • Plan for “sheltrees” – uninjured persons from neighborhood or brought by LE Some unattended peds, some geriatric w/problems Plan for minimum of 8 hours until ARC can open shelters, then plan for transport there Plan for sheteree animals , bites &amp; ETC. Prevent thefts – get supp. lights and security
  • An employer can also be responsible for the acts of employees on grounds of negligent hiring, supervision or retention. This is direct liability – the “employer” is liable for its own failure to use due care in the employment process. It basically holds the employer responsible for negligently placing an Employee in a position to do harm to others. Direct liability of an employer for acts or omissions of employees based on the employer’s failure to use reasonable care in Selecting workers Training them Supervising their work, and Terminating their services when necessary “ No good deed goes unpunished” The “slack” you give your employee may be the rope that hangs you
  • Contracts Malpractice and professional liability General tort liability – negligence or an act or omission Economic loss Non-economic loss Gross negligence, wanton misconduct, bad faith Vicarious liability Respondeat superior Negligent recruitment/ training/supervision Premises liability Worker’s compensation.
  • Three possibilities for negligence liability: Absence of a plan Inadequate plan Failure to follow plan 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. 2006 Punitive Damages – wanton and willful misconduct Failure to Plan: I would submit that the standard is already set. 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 by order of the Governor State plan invoked in an event by the Governor
  • There is always some who will want to sue you, and always a lawyer who will take the case. So, there’s no such thing as being “law-suit proof,” rather, we speak in terms of “judgment proof.”
  • Judgment Proofing and defenses
  • 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.
  • &quot;To Tell the Truth, the Whole truth and nothing but the Truth&quot; -We must first study and learn the absolute truths and never vary from them. If we devote our total allegiance to the truth, we will be free to make ethical decisions without fear of making a mistake, (not without making mistakes, but without fear of making mistakes) and without fear of the consequences because, if we have followed the truth, we are not responsible for the consequences, the truth is responsible for the consequences. It is when we do not follow the 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 to be applied. It is your duty to know these “truths..” before you start planning. The &quot;No Delta Principle&quot;- 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&quot; - In the storm, we make our decisions by applying the plumb line and level of the truth. &quot;We&apos;ll Sing in the Sunshine&quot;- 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 sunshine temporally, 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. &quot;It&apos;s Not About Me.&quot; 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 the urge 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!
  • Have a Plan Work your Plan Plan for the Unexpected “ Plans must be simple and flexible. . .made by the people who are going to execute them. ”
  • Plan must be beyond your “wildest dreams.” -Janet Teer, General Counsel DCH System Expand your concept of “disaster” Not 10-100 pts in ED but 800-1500 anywhere Get a team on the planning process w/deadlines Plan in accord with TJC Approved by local EMA and ADPH
  • Whatever method is decided upon, may I offer several points: It needs to be decided now . Have a plan now. [1] It is a moral failure to put off such a momentous decision until there is no time to reach a good decision. Professor Tabery urges the use of a Triage Review Board including an administrator, physicians, nurses, clergy, ethicists, and community persons at large to oversee the use of triage on a very frequent basis for practical as well as ethical reasons including the need to “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,) it should at least be formulated with wide input. Professor Tabery’s thoughts do have much to lend themselves to the utilitarian. He states that a good plan needs a Triage Officer – the initial person making these life and death decisions, 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 be constantly reviewed during the implementation phase. The triage officer should be debriefed periodically by superiors and the whole process looked at on an on-going basis by the Triage Review Board [1] Coach Paul “Bear Bryant” is often quoted for the management technique: “have a plan, work your plan, plan for the unexpected.”
  • Professor James Tabery states of the ethics of triage in disaster situations that there has been or is in the process of becoming switch from standard medical ethics with the primary focus on individual autonomy to an ethics of public health with a primary focus on the health of the community , with the overarching goal being to minimize morbidity and mortality during the pandemic. Professor Tabery then takes the Bentham/Kant debate into the 21 st Century in looking at models for triage: Utilitarian v. Egalitarian. In other words, given scarce resources, do the workers address the needs from the basis of for whom they can do the most good , or to those who are in greatest need ?
  • ADPH develops a template for disaster planning and resource allocation, the Ventilator Triage We recommend you adopt it as your plan It may give state agency immunity. See http://www.adph.org/CEP/assets/VENTTRIAGE.pdf
  • Set time period for injured party to file lawsuit Exception is rule of discovery Statute of limitations does not begin to “run” until injury Is discovered Will not begin to “run” if fraud (deliberate concealment of facts from patient) is involved. Torts -Generally 2 years Includes wrongful death Personal Injury Assaults and Batteries Trespass – 6 years Contracts – Generally 6 years Could include personal injury under contract See more later Med-Mal - ± 4 years
  • Statutes of Limitations - All actions against health care providers must be commenced within two years after the act or omission giving rise to the claim; provided, that if the cause of action is not discovered and could not reasonably have been discovered within the two-year period, then the action may be commenced within six months from the date of such discovery or the date of learning of facts that would reasonably 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 be brought more than four years after the act or omission, except that a minor who is under the age of four at the time of the act or omission accrues has until his eighth birthday to commence an action. Id . The constitutionality of the statute has been upheld. Barlow v. Humana, Inc. , 495 So. 2d 1048 (Ala. 1986). A wrongful death action must be brought within two years after the decedent&apos;s death. Ala. Code §§ 6-2-38 and 6-5-410 (1993). This &quot;statute of creation&quot; is not subject to any tolling provisions and applies in wrongful death cases even if the 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 &quot;In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor&apos;s alleged lack of due care or skill requires only common knowledge or experience.“ Monk v. Vesely , 525 So. 2d 1364, 1365 (Ala. 1988). The exception applies only to such situations as a foreign object left after surgery or an injury remote from the part of the body being treated. Dews v. Mobile Infirmary Ass&apos;n , 659 So. 2d 61 (Ala. 1995). A health care provider may testify as an expert witness in any action against another health care provider based on a breach of the standard of care only if he or she is &quot;similarly situated,&quot; 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 the same specialty and must have practiced within the previous year. Id. ; Malcolm v. King , 686 So. 2d 231 (Ala.1996).
  • Code of Ala.1975 § 22-21-318(2) caps damages against a “health care authority” at #100,000 Does not apply to a for-profit hospital Does not apply to a purely county or municipal owned hospital
  • Covers any [costs &amp; [damages the physician/ employer/ EMT must pay if he or she is sued for malpractice and loses [to policy limits] All licensed and certified medical professionals should carry malpractice insurance 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
  • Claims-made insurance - covers insured party for claims made only during the time period policy was in effect Occurrence insurance - covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made Limits – Usually $1-3 Million including defense costs
  • In addition to med-mal Should cover premises liability – Agree w/ co. &amp; know what is (in)(ex)cluded. Ask questions “ Soft market,” you may be able to negotiate add’l coverages w/ Pro Assurance, Coastal or McNeary Consider coverage for HHS/CMS civil penalties Have high $ “umbrella” gen’l liability coverage May have to be re-insured
  • The New York State Departments of Agriculture and Environmental Conservation 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. Thus, in a discussion of the ethical treatment of patients, we would be in a scarce resource situation; this leads to a discussion of the ethical and legal basis for Altered Standards of Care . When is it permissible from an ethical and legal standpoint to provide less than the care normally expected or held to be what is referred to in 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 traditionally expected 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 Emergency Preparedness (OASPHEP) within the U.S. Department of Health and Human Services (HHS) convened a blue ribbon 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-event
  • . The committee reports that in such scenarios, the focus will have to change from doing to best for each patient to maximizing the most lives saved. They recognize that such consideration will affect current patients already in the hospital for other, non-related illnesses and injuries. They also recognize that the usual scope practice standards will of necessity change, equipment and supplies will need to be rationed, documentation standards will change, and [basically, bodies will pile up .]
  • Once the Governor declares the emergency, the world in Alabama changes. 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.” Definition is broad enough to cover B/T incidents or naturally occurring events like hurricanes and tornadoes. Under newly passed HB 107, “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.”
  • This would activate the State Emergency Operations Plan (EOP). Specifically activation of Tab A (Pandemic Influenza) to Incident Annex A (Biological Incident Annex) . Due to the complex nature, the Department of Public Health has developed different operational plans to deal with mass distribution of countermeasures and pandemic influenza. The two plans are the Strategic National Stockpile Plan (SNS Plan) and the Pandemic Influenza Operational Plan (PI Plan).  These plans can be utilized together or separately. They complement each other, and serve as the operational response to a biological incident in the State of Alabama. The Alabama Emergency Management Agency will activate the State Emergency Operations Center for biological incidents 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 Alabama Emergency Management Agency, Alabama Department of Public Health, Alabama Department of Homeland Security, Alabama Department of Public Safety, Alabama Department of Agriculture and Industries and/or other agencies as the situation requires. ADPH is responsible for Emergency Support Function (ESF) #8 —Public Health and Medical Services   Under The authority of Title 31, the Governor could proclaim a state of public health emergency.
  • In 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 volunteers.
  • Section 31-9-16 provides that: Except for willful misconduct, gross negligence or bad faith, any “emergency management worker” is granted state officer immunity. Requirements for licenses to practice do NOT apply “ Emergency worker” is anyone helping out whether paid or not. The business or corp. is also an EMW and therefore has the same immunity as the individuals.
  • § 31-9-17 provides similar liability protections apply to those permitting the state to use their real property
  • TJC MS 4.110 - Disaster privileges may be granted when the hospital&apos;s emergency management plan has been activated and the hospital cannot manage immediate patient care needs: 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 &quot;protocol&quot; 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.
  • § 6-5-336. Volunteers. (a) This section shall be known as &quot;The Volunteer Service Act.“ VOLUNTEER. A person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct service volunteer. § 6-5-336. Volunteers Defined. A person performing services for: a nonprofit organization, a nonprofit corporation, a hospital, a governmental entity, without compensation,
  • (d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if: (1) The volunteer was acting in good faith and within the scope of such volunteer&apos;s official functions and duties for 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. (e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for civil damages based upon the negligent act or omission of a volunteer, proof of such act or omission shall be sufficient to establish the responsibility of the organization therefor under the doctrine of &quot;respondeat superior,&quot; notwithstanding the immunity granted to the volunteer with respect to any act or omission included under subsection (d).
  • Contracts
  • Simply, an exchange of mutual promises. Written or oral To do legal acts
  • Contracts Grants Benefit Agreements Amendments Purchase Orders
  • Offer, Acceptance, Consideration Reliance to detriment “ boiler plate” In writing
  • Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” for main and alternate sites Make sure supplier contracts and contractors have connections to get your supplies, like generators, in a hurry Make sure it’s in writing or at least followed up with a letter stating your understanding of the verbal agreement
  • Same formalities as the instrument which it amends Same process as the instrument which it amends
  • What is Mutual Aid? Types of Mutual Agreements State Emergency Mutual Aid Compacts (EMAC) EMAC in the Broader Sense Cost Reimbursement Issues Characteristics of Private Agreements
  • Mutual aid can cover a wide range of activities and arrangements between numerous different levels of government. Frequently, mutual aid agreements are not only in writing but also authorized by special legislation. For example, in 2004 Congress enacted special legislation to facilitate mutual aid between jurisdictions in the National Capital Region; these arrangements had been hindered by the significant differences in tort liability in the State of Maryland, the Commonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458, __ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004). The statutory solution here was to provide that the law and court system of a responder’s home jurisdiction would 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. No government can commit to send resources elsewhere in advance without knowing whether those resources are required to handle its own problems.
  • Unit 5 Some mutual aid agreements do not provide for compensation. These agreements normally cover small scale incidents requiring limited resources and a relatively short duration. For emergency response, however, the cost 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 be eligible for federal reimbursement under the Stafford Act, then the costs charged under the mutual aid agreement would also be reimbursable – but only if the mutual aid agreement is in writing and requires compensation. 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 workman’s compensation limitations applied and which jurisdiction was responsible. In the absence of dispute resolution provisions in the mutual aid agreement, disputes between requesting and responding jurisdictions may be litigated in a court with jurisdiction over the parties and subject matter. For example, original jurisdiction over disputes between states is in the United States Supreme Court. EMAC provides that any employee of responding jurisdiction is deemed to be licensed in the requesting jurisdiction.
  • Unit 5 National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement to assist states in reviewing their existing legislation. http://emacweb.org/docs/NEMA%20Proposed%20Intrastate%20Model-Final.pdf Per that document- 27 States had formal agreements as of February 2004 Those states include: AL, AZ, CT, FL, GA, HI, IL, IN, IA, LA, MD, MI, MO, MS,NE, NH, NC, OH, OR, RI, SC, TX, VT 5 Additional states had proposed compacts in their legislature during February 2004, including: AL, CO, KY, NV, WI An additional 4 states &amp; 1 territory were drafting a proposal before their legislature, as of 2/04 including: DE, NM, NY, OK &amp; VI 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 provisions
  • MOUs define rights and responsibilities only The parties: Health Departments, hospitals, other providers, responder communities, other regional parties Disaster – proclaimed, declared or not Limitations – players and resources The need: identifying &amp; providing resources, personnel and &amp; care and moving patients See http:// www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.doc
  • 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 including pediatric, 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 Participant&apos;s 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.
  • No party is legally obligated to accept patients or send staff, supplies or resources when to do so would compromise its local service mission. This agreement is entered into voluntarily and the Network Participants are not obligated to offer any support or assistance; however, Network Participants agree, in the event of a Disaster, to use reasonable efforts to make pediatric clinical staff, medical and general supplies, including pharmaceuticals, and biomedical equipment (including, but not limited to ventilators, monitors and infusion pumps) available to each another. Each Network Participant shall be entitled to use its reasonable judgment regarding the type and amount of staff, supplies and equipment it can provide without adversely affecting its own ability to provide essential services. However, participants agree to try to assist and to advise of availability of resources through Incident Management Systems The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through the EOCs
  • Requests for mutual assistance follow the normal process of requesting assistance through the local Emergency Management Agency and, if appropriate, the local Emergency Management Agency will escalate the request to the appropriate Region state Emergency Management Agency and if needed the state Emergency Management Agency may escalate requests at the Federal level. The Network, through the Emergency Operations Centers will coordinate efforts between Network Participants and Region state Emergency Operations Centers to ensure appropriate transfer of pediatric patients 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 the Network during any revisions of this Network Memorandum of Understanding and to communicate with the Network and the appropriate individuals within the representative’s own organization in the event of a Disaster. The Designated Representative or delegate individual shall attend meetings and conferences scheduled by the Network to discuss issues related to this Network and if needed, to revise the Network Memorandum of Understanding. The Designated Representative or delegated individual shall act as a liaison with representatives of the Network Participants in the event of a Disaster. The Network Participants agree to communicate and coordinate their response efforts via their Designated Representatives who have operational authority to commit the resources of the Participant as specified in the Participant Emergency Operations Plan. In the event of a Disaster, Network Participants agree to inform their non-employee medical staff members of any requests for assistance and offer them the opportunity to volunteer their professional services. Network Participants shall cooperate with each other to provide in a timely manner the information necessary to verify employment status, licensure, training and other information necessary in order for such volunteers to receive emergency credentials.
  • Network Participants cannot guarantee reimbursement for pediatric medical assistance, facilities, supplies or other types of support. However, to the extent that reimbursement may be available, every effort will be made to obtain such reimbursement through federal or other monies as they become available as long as the Network Participant is not reimbursed for the pediatric medical assistance, facilities, supplies or other types of support by insurance, Medicare, Medicaid, or other third party payor. To ensure effectiveness, Network Participants will be given an opportunity to participate in periodic Network training 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 in conjunction with voluntary participation in the Network. Nothing in this agreement shall be construed as limiting the rights of the Network Participants to affiliate or contract with any other entity or operating an entity or other health care facility on either a limited or general basis while this agreement is in effect. This Memorandum of Understanding may be canceled at any time by any party by giving a thirty (30) day written notice to the other parties. However, if no such notice is given, the Network agreement remains in effect in perpetuity.
  • MOU Liability Participants assume no liability merely by becoming a signatory to the MOU However, participants may be liable for acts and omissions of their staff in performance under the MOU or governmental orders Also, In following their pre-approved plan, in case of Declaration by Governor, there may be certain immunities for staff.
  • Out 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. Would there be enough ambulances in a disaster? What vehicles would be used? Would they licensed as “ambulances by public health?” What about common carriers and public service commissions or the ICC? Consider school and municipal busses.
  • Do you have appropriate transfer agreements? Could they go out of state perhaps? 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? What about security of personnel and patients? Can records be transferred electronically ?
  • The examples of mutual aid agreements is the “Metropolitan Area Hospital Compact” of the Twin Cities. It 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. 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 facility Discusses sharing of staff
  • 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 others can be verbal, or scribbled on the back of a napkin. The elements generally recognized as creating a contract are an agreement between the parties and some consideration - something of value, not necessarily money- that is exchanged by the parties. So how can contractual liability come into play for EMS programs? It can surface in several ways, which are listed on this slide. One of the most important exposures is assuming liability from the other party in a contract, For example, an EMS program may be asked to agree in a contract or letter of agreement that it will be responsible for any liability arising from the activities of its volunteers. This would be the effect of an indemnification and hold harmless clause in the letter of agreement. Or a response partner may require the program to have insurance it doesn’t have, leaving it in breach of contract for failing to have it.
  • Risk 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”)
  • The most important part of your response to liability risks is your risk reduction program. Risk financing - what you do to pay for losses that have occurred – should be the last line of defense. What you really want to do is prevent those losses from occurring to begin with. Listed are some important risk reduction: Credentialing and assignment to appropriate duties Criminal background checks Verifying necessary licenses (professional, driving, watercraft) Clear activation and deactivation procedures Employee orientation, training and exercises Employee identification badges
  • Written partnership agreements stating roles &amp; responsibilities Written engagement/utilization records Procedures for keeping patient treatment notes Rules of conduct and grounds for dismissal Communications procedures Post-incident debriefing
  • Disaster Privileges Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge by medical staff member) Assign provider to area qualified to work Abbreviated orientation program for emergency personnel Brief on state-specific liability issues: Licensure Laws Good Samaritan Laws Malpractice risks Consider using ADPH volunteer system to vet
  • Hospitals and Community, Emergency Response - What You Need to Know, Emergency Response Safety Series, U.S. Department of Labor – OSHA # OSHA 3152 (1997) TJC Standards on Hospital Emergency Planning: CAMH/Hospitals
  • Healthcare at the Crossroads TJC http://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=2&amp;sqi=2&amp;ved=0CCsQFjAB&amp;url=http%3A%2F%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2Femergency_preparedness.pdf&amp;ei=Fig9T7CXMIOltwfjur20BQ&amp;usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&amp;sig2=-KywQYc3ldurvHxWQ-WZ3Q
  • An example plan is found at: http://www.uhb.org/pnp/dsplan.htm . This is from the State University of New York Hospital System. SUNY DOWNSTATE MEDICAL CENTER, DEPARTMENT OF EMERGENCY MEDICINE, phone: 718-245-4790 | fax: 718-245-4799
  • Usa.hospital.preparedness.2013.apr

    1. 1. For A Copy of Presentation and the Text► See “ARRTC,” a download on Slideshare 7 <slideshare.net>► See also my Facebook Page John R. Wible, 2012 1
    2. 2. ARRTC – 2013Judgment – Proofing and Contracts John R. Wible, J.D. General Counsel (Retired) Alabama Department of Public Health John R. Wible, 2013 2
    3. 3. Disaster Comes in Many Forms John R. Wible, 2013 3
    4. 4. It Could Be AnywhereComplete Evacuation of NYU Langone Medical Center, 10/30/12 John R. Wible, 2013 4
    5. 5. New York Patients TransferredPatient transferred from NYU Langon 10/30/12 John R. Wible, 2013 5
    6. 6. But, Even Before Then . . . John R. Wible, 2013 6
    7. 7. DCH Could Have Been Hit- What If ????? John R. Wible, 2013 7
    8. 8. Government Authority to Act in Emergencies: Model► Legal authority is at its peak at the emergency’s peak► As crisis comes under control, legal authority is subject to greater legal constraints► And attention shifts to responsibility for costs and damages/losses John R. Wible, 2013 8
    9. 9. -The Eye of the Storm-What Really Happens in a Disaster John R. Wible, 2013 9
    10. 10. Disaster/Planning► Disaster -Any emergency that disrupts normal community function causing concern for the safety of its citizens.► Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death that accompanies a disaster.► Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in the hospital John R. Wible, 2013 10
    11. 11. 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? John R. Wible, 2013 11
    12. 12. 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; All leading to BAD CHOICES John R. Wible, 2013 12
    13. 13. What if Power is Lost?Also lost are:► Sewage / water systems► Lights/Cooling and heating elements► Elevators and automatic doors► Internal and external communications► Ability to track ID and patients John R. Wible, 2013 13
    14. 14. Other Contemplated Losses► Food, water and utensil supply► Shortages of meds, disposables and DME  You should anticipate the most critical  Personal Hygiene / Sanitary Supplies  PPE needed  Food, meds and water w/evacuees► Staff and Security losses► Handling waste: medical and other► Transportation and fuel John R. Wible, 2013 14
    15. 15. Don’t Be Bait for Liability► Federal Issues► Criminal Issues► Administrative Issues► Civil Issues  Torts  Contracts John R. Wible, 2013 15
    16. 16. Federal Law Causes of Action ► 1963 Civil Rights Act violations  ADA, ADEA  Section 504, Rehabilitation Act ► HIPAA ► EMTALA ► FMLA ► FLSA (wage and hour) ► OSHA ► FDA John R. Wible, 2013 16
    17. 17. The Health Portability andAccountability Act (HIPPA) (Amended by HITEC) John R. Wible, 2013 17
    18. 18. The “Golden Rule of Documentation”If it ain’t wrote down it didn’t happen!The way it is wrote down is the way it happened regardless of the way it John R. Wible, 2013 18
    19. 19. Confidentiality- Access to Records► General rule – (Privacy Rule) All patient information is strictly confidential. You must maintain patient information confidential outside the necessary situation► However – exceptions in emergency situations  45 CFR 164.512 – emergency personnel and LE John R. Wible, 2013 19
    20. 20. Imperatives for Protecting PHI► Improvements in health care and community health require responsible sharing of some PHI► In the absence of privacy protections, patients and others may avoid some clinical, public health and research interventions to their detriment► Individual privacy protections must balance with legitimate community uses of PHI, i.e., health research and public health John R. Wible, 2013 20
    21. 21. Methods to Avoid Liability -DCH to media and► Have only one or two voices the public, IE., thousands of calls► Train employees to route pts. to triage regardless of ingress► Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central clearing house► Follow up pts later with your EMR► Document, document, document John R. Wible, 2013 21
    22. 22. Disaster Applicability DHHS Says:► Responding agencies will need to get PHI to respond to emergencies► Therefore a covered entity can disclose PHI to emergency authorities in such an event.► Attempt to have prepared systems that minimize non-emergency disclosures► See 45 CFR 164.512(b) public health activities John R. Wible, 2013 22
    23. 23. EMTALA► Section 1867, Social Security Act► Must triage and stabilize then treat or transfer► What if you are in a disaster?  DHC found the Statewide Trauma System to be very helpful  Plan to set up emergency triage sub-stations  Have transfer agreements – where and how ►Ambulances – is there prohibitive (exclusive) ordinance? ►ADPH bus kits► If in a true disaster, unlikely HHS will pursue 23 John R. Wible, 2013
    24. 24. WHERE DOES EMTALA APPLY? Outpatients “I have a med. cond.” EMTALA APPLIES 250 yds Main Hosp. CAMPUS DED Prov#444 DED “I have EMC” EMTALA Women’s Ctr.Prov. #444 appliesSample EMTALA Off campus DED = Dedicated Emerg. Dept. does not Prov. #444 fac. No DED. 23 apply John R. Wible, 2013
    25. 25. 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  N.O. didn’t evacuate in part because though they had busses, they didn’t have drivers who had deserted► Tenet-Memorial Hospital (N.O) settled suit involving evacuation plan John R. Wible, 2013 25
    26. 26. OSHA in a Disaster – Plan!► Have pre-emergency drills implementing plan, practice sessions using the ICS System► Establish lines of authority and communication between incident site and hospital personnel► Designate disaster team including ED MDs, nurses, aides and support personnel w/PPE► Designate alternate sites► Post-emergency critique of the hospitals emergency response – OSHA Pub. 3152 (1997) John R. Wible, 2013 26
    27. 27. Fair Labor Standards Act► Plan should include use of reserves and time off where possible► 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% reimbursement John R. Wible, 2013 27
    28. 28. Pure Food, Drug & Cosmetic Act► Be careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or pharmacist► Plan a work around of this. Work with city to have pre-established aid stations w/pharmacist coverage► Pharmacists can be obtained and dispatched through ADPH volunteer network John R. Wible, 2013 28
    29. 29. Licensure Issues – Bed Capacity► Code of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximum bed capacity► This may be exceeded in emergency by contacting ADPH Bureau of Health Provider Standards for a temporary waiver► Probably can be done through AIMS► This will not be your biggest problem John R. Wible, 2013 29
    30. 30. The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements related to emergency management► The hospital has Emergency Operations Plan► The hospital engages in planning activities prior to developing its written EOP► The hospital prepares for how it will: communicate, manage resources, provide security, staff, and grant privileges to other practitioners during emergencies John R. Wible, 2013 30
    31. 31. Criminal ComplaintsIt can happen – just ask Dr. Pou in N.O. Trespass Assaults and Batteries Theft of property Conversion Offenses involving sexual misconduct John R. Wible, 2013 31
    32. 32. Civil Liability, Lawsuits,Defenses and ImmunitiesTortsContractsDefensesImmunitiesInsuranceLoss Prevention John R. Wible, 2013 32
    33. 33. Torts► Anactionable wrong under the law  Negligent torts Not This  Intentional torts  Strict liability -Probably not a concern here► Recoverable in a civil action against you This► Filed in Circuit Court► The plaintiff wants money damages John R. Wible, 2013 33
    34. 34. Types of Torts► Malpractice and professional liability► General tort liability – negligence for an act or omission  Economic loss  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) John R. Wible, 2013 34
    35. 35. NegligenceThe failure to act or perform in a particular situation as any other reasonable prudent dispatcher with similar training would act under the same or similar circumstances. John R. Wible, 2013 35 35
    36. 36. Negligent Torts Examined► Negligent torts arise from the failure to use reasonable care under the circumstances, causing 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 John R. Wible, 2013 36
    37. 37. Proving Negligence►“Intentto cause harm” is not required►Four things are required to be proved  Duty  Breach of the duty  Injury or damage  Proximate cause John R. Wible, 2013 37
    38. 38. “Punnies” Awarded for:► Gross negligence - reckless disregard of the consequences to the safety or property of another► Willful acts - intentional, conscious and directed toward achieving a purpose  Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people or property  Reckless behavior–similar to gross negligence John R. Wible, 2013 38
    39. 39. Exceeding the Scope of Practice The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further defined by the professional’s experience and training ► Licensing statutes ► Training and ability John R. Wible, 2013 39
    40. 40. Standard of Care► Establishing– can be set by statute or by governmental rule or by the court► Measures 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 nationally►I have a plan to alter the std. in emergency John R. Wible, 2013 40
    41. 41. Breach of the Standard of Care► The standard of care for a professional is the “reasonable person” negligence doctrine in a professional services context.► Standard liability issues center around whether the person has maintained the “standard of care.”  See Code of Ala.1975 §6-5-548 .  See also Humana Medical Corporation v. Traffanstedt, 597 So. 2d 667 (Ala. 1992) A “Dam” Breach 41 John R. Wible, 2013
    42. 42. Medical Malpractice► Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient► Med-Mal is subject to a special statute  Code of Ala. 1975 §§ 6-5-480, et seq.  Code of Ala. 1975 §§ 6-2-38 and 6-5-410► Hospitals are covered as well 42 John R. Wible, 2013
    43. 43. Corporate or Group Liability Corporate Negligence Vicarious liability /Respondeat superior Negligent recruitment/training /supervision Premises liability John R. Wible, 2013 43
    44. 44. 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 there► Plan for sheteree animals , bites & ETC.► Prevent thefts – get supp. lights and security John R. Wible, 2013 44
    45. 45. Negligent Hiring, Training, Supervision or Retention► Direct liability of an employer for acts or omissions of employees based on the employer’s failure to use reasonable care in  Selecting workers  Training them  Supervising their work, and  Terminating their services when necessary► “No good deed goes unpunished” John R. Wible, 2013 45
    46. 46. Respondeat Superior The master is responsible for the acts or omissions of his/her servant committed “within the scope and line of duty” Not on “frolic and detour” Hospital is responsible for the acts of personnel in the line of duty Though not “independent contractors” Doctor is responsible for the nurse under his/her control John R. Wible, 2013 46
    47. 47. Failure to Plan Three possibilities for negligence liability: Absence of a plan Inadequate plan Failure to follow plan Reasonable care: probability of an event, gravity of potential injury, and burden in adequate precaution – See Lacoste v. Pendleton Methodist Hospital . Supreme Court of Louisiana. 2006 Forseeability - U.S. v. Carroll Towing Company Punitive Damages – wanton and willful misconduct John R. Wible, 2013 47
    48. 48. Who are the Potential Plaintiffs? And who will represent them? John R. Wible, 2013 48
    49. 49. JUDGMENT PROOFING AND DEFENSES John R. Wible, 2013 49
    50. 50. Two Very Important Ques.► Can you make the hard calls?► How much risk are you willing to plan to take? John R. Wible, 2013 50
    51. 51. Making Hard Calls - Principles ► To tell the truth, the whole truth and nothing but the truth  No Delta Principle  The Principle of the Plumbline  Free at Last! ► “We’ll Sing in the Sunshine” ► Casper the Friendly Ghost ► It’s not about me ► The “Nike Principle.” John R. Wible, 2013 51
    52. 52. Planning -“Bryant’s Rule” Patton’s Corollary► Have a Plan► Work your Plan► Plan for the Unexpected Coach► “Plans must be simple and Bryant flexible. . .made by the people who are going to execute them.” John R. Wible, 2013 Gen. Patton 52
    53. 53. Plan “Beyond Your Wildest Dreams”► Plan must be beyond your “wildest dreams.”  -Janet Teer, General Counsel DCH System► Expand your concept of “disaster”  Not 10-100 pts in ED but 800-1500 anywhere► Get a team on the planning process w/deadlines► Plan in accord with TJC► Reviewed by local EMA John R. Wible, 2013 53
    54. 54. Triage Planning► Get a Plan. See “Bryant’s Rule”► Get a Triage Review Committee  Plan  Oversee  Evaluate post-event► Engage the public in the discussion► An experienced triage officer John R. Wible, 2013 54
    55. 55. Modern Disaster Triage► In disasters there is a switch from standard medical ethics with the primary focus on Individual autonomy to an ethics of public health with a primary focus on the health of the community► The overarching goal is to minimize morbidity and mortality during the pandemic (according to CDC)► Will it be most good or greatest need? John R. Wible, 2013 55
    56. 56. Specific Template for Disaster Planning-Vent. Triage ESF 8► ADPH develops a template for disaster planning and resource allocation, the Ventilator Triage► We recommend you adopt it as your plan► It may give state agency immunity. See http://www.adph.org/CEP/assets/VENTTRIA GE.pdf John R. Wible, 2013 56
    57. 57. Statute of Limitations► Settime period for injured party to file lawsuit► Torts -Generally 2 years  Includes wrongful death, PI, and A & B  Trespass – 6 years► Contracts – Generally 6 years  Could include personal injury under contract  See more later John R. Wible, 2013 57
    58. 58. S/L – Med Mal►2 years from reasonable discovery► No more than 4 years from occurrence► Minors – 4 years after discovery or 8 th birthday► Award  Actual out of pocket expenses  “Non-economic loss” – capped at $400,000  Punitive damage cap of $250.000 unconstitutional.► Requires expert of the same discipline 58 John R. Wible, 2013
    59. 59. Damage Caps for HCAs► Code of Ala.1975 § 22-21-318(2) caps damages against a “health care authority” at $100,000► Does not apply to a for-profit hospital► Does not apply to a purely county or municipal owned hospital John R. Wible, 2013 59
    60. 60. Malpractice Insurance► Covers any [costs & damages the physician/ employer/ employee must pay if (s)he sued for malpractice and loses [to policy limits]► All licensed and certified medical professionals should carry malpractice insurance or have hospital provided► Can be an expensive type of insurance for some disciplines► Hospital carries general liability and D & O John R. Wible, 2013 60
    61. 61. Types of Med-Mal Insurance► Claims-made insurance - covers insured party for claims made only during the time period policy was in effect► Occurrence insurance - covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made► Limits – Usually $1-3 Million including defense costs John R. Wible, 2013 61
    62. 62. Hospital Insurance► In addition to med-mal► Should cover premises liability – Agree w/ co. & know what is (in)(ex)cluded. Ask questions► “Soft market,” you may be able to negotiate add’l coverages w/ Pro Assurance, Coastal or McNeary► Consider coverage for HHS/CMS civil penalties► Have high $ “umbrella” gen’l liability coverage► May have to be re-insured John R. Wible, 2013 62
    63. 63. Goals -Altered Standards of Care Goal!► Maximize the number of lives saved.► Changes necessary to allocate resources► Basis for allocation - fair and clinically sound► Process for decisions - transparent and fair► Protocols flexible and “scalable”► Staff concerns addressed pre-event John R. Wible, 2013 63
    64. 64. 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► The scope of practice changes► Equipment, meds and supplies rationed► Record-keeping changes John R. Wible, 2013 64
    65. 65. Emergency ManagementUnder 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.” Definition is broad enough to cover public health incidents or naturally occurring events like hurricanes and tornadoes. Amendments add “Public Health Emergency” John R. Wible, 2013 65
    66. 66. Governor Proclaimed Emergency► Activationof State EOP► Tab A (Pandemic Influenza) to Incident Annex A (Biological Incident Annex) A► ADPH is responsible for ESF #8 Public Health and Medical Services John R. Wible, 2013 66
    67. 67. Governor’s Powers In 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 volunteers. John R. Wible, 2013 67
    68. 68. 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)is granted state officer immunity. ► Requirements for licenses to practice do NOT apply ► “Emergency worker” is anyone helping out whether paid or not ► The business or corp. is also an EMW John R. Wible, 2013 68
    69. 69. Property Protections§ 31-9-17 provides similar liability protections apply to those permitting the state to use their real property John R. Wible, 2013 69
    70. 70. Volunteers► PrivilegingProfessional Staff► 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. John R. Wible, 2013 70
    71. 71. The Volunteer Service Act § 6-5-336. Volunteers Defined. A person performing services for: • a nonprofit organization • a nonprofit corporation • a hospital • a governmental entity • without compensation“Minuteman” John R. Wible, 2013 71
    72. 72. The Volunteer Service ActThe volunteer is immune from civil liability► in any action on the basis of any act or omission► resulting in damage or injury if: ­ acting in good faith and within the scope of duties; ­ for a covered organization; and ­ damage or injury was not caused by: ­ willful misconduct; ­ or wanton misconduct by the volunteer► DoesNOT immunize the organization, however John R. Wible, 2013 72
    73. 73. CONTRACTS John R. Wible, 2013 73
    74. 74. What is a ContractSimply, an exchange of mutual promises.► Written or oral► To do legal acts John R. Wible, 2013 74
    75. 75. Types of Instruments► Contracts► Grants► Benefit► Agreements► Amendments► Purchase Orders John R. Wible, 2013 75
    76. 76. Elements of a contract► Offer,► Acceptance,► Consideration► Detrimental Reliance► “Boiler plate”► “In writing” (Sorry, I thought it said, “Elephants of a contract”| John R. Wible, 2013 76
    77. 77. Contract Suggestion - DCH► Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” for main 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 letter stating your understanding of the verbal agreement. (See slide 17.) John R. Wible, 2013 77
    78. 78. Amendments► Same formalities as the instrument which it amends► Same process as the instrument which it amends John R. Wible, 2013 78
    79. 79. MUTUAL AID AGREEMENTS► What is Mutual Aid?► Types of Mutual Agreements► State Emergency Mutual Aid Compacts (EMAC)► EMAC in the Broader Sense► Cost Reimbursement Issues► Characteristics of Private Agreements John R. Wible, 2013 79
    80. 80. Mutual Aid: Key► Characteristics Generally by written agreement► Agreements cover:  Activation Procedures  Liability, employment and compensation  Federal reimbursement where appropriate► “Voluntary”’ response  Do not “guarantee” assistance provided ► Indicates mere “desire” to respond when requested, if able ► Specifies terms/conditions/procedures John R. Wible, 2013 80
    81. 81. Mutual Aid: Key Characteristics► Compensated vs. donated  Most current mutual aid agreements do not provide for compensation or direct reimbursement for small-scale incidents  In most mutual aid agreements are applicable to major responses, requesting jurisdiction reimburses the costs of the responding jurisdiction John R. Wible, 2013 81
    82. 82. Intra state Mutual AidThe National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement to assist states in reviewing their existing legislation.  http://emacweb.org/docs/NEMA %20Proposed%20Intrastate%20Model- Final.pdf John R. Wible, 2013 82
    83. 83. The MOU- Alabama Prospective► Alabama Hospital Mutual Aid MOU (59 sigs)- See http://www.adph.org/CEP/assets/Mutual_Aid_Compact_includin g_Exhibits_final.doc► MOUs define rights and responsibilities only► Parties: ADPH, hospitals, other providers, responder communities, other regional parties► Disaster – proclaimed, declared or not► Limitations – players and resources► The need: identifying & providing resources, personnel and & care and moving patients  John R. Wible, 2013 83
    84. 84. The MOU - Purpose► Purpose - to identify interested parties and their resources to support the coordination of local, state, and multi-state resources to respond to an emergency or disaster► MOU is supplementary to participant’s EOP, procedures and protocols► MOU supplements States’ EOPs, statutes and regulations John R. Wible, 2013 84
    85. 85. MOU – Not Obligatory► No party is legally obligated to accept patients or send staff, supplies or resources when to do so would compromise its local service mission► However, participants agree to try to assist and to advise of availability of resources through Incident Management Systems► The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through the EOCs John R. Wible, 2013 85
    86. 86. MOU – Normal EMA Chain► Participants follow usual system of going through the local EMA including EMAC► EMA should be tasked to escalate requests if necessary and as high necessary► Each participant identifies a knowledgeable Point of Contact with authority to commit► Participants will coordinate non-employee medical staff who agree to volunteer John R. Wible, 2013 86
    87. 87. MOU Reimbursement, Non- Exclusivity, Withdrawal► No reimbursement is guaranteed but network will facilitate reimbursement if any from federal sources if not otherwise able to bill Medicare, Medicaid or third party payor► Participants are given opportunity to train► The MOU is not exclusive► Any participant may withdraw on 30 days notice otherwise parties in “for the duration” John R. Wible, 2013 87
    88. 88. MOU - Liability► Participants assume no liability merely by becoming a signatory to the MOU► However, participants may be liable for acts and omissions of their staff in performance under the MOU or governmental orders► Also, in following their pre-approved plan, in case of Declaration by Governor, there may be certain immunities for staff John R. Wible, 2013 88
    89. 89. Transportation/EMS Contracts► Out 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► 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 buses John R. Wible, 2013 89
    90. 90. Transfer Agreement Issues► Got appropriate transfer agreements?► Could they go out of state perhaps?► 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) ? John R. Wible, 2013 90
    91. 91. Private Agreements – Should Address► Voluntary nature, not a legally Reporting of bed capacity. binding contract; rather it outlines a (In Alabama use AIMS ) general policy of cooperation and coordination Auxiliary locations► Communications including: liaison Contribution and sharing of staff officers, EOCs, and joint public and who is retains responsibility information centers (JPIC) for staff issues► Forced evacuation – distributes Staff credentials & privileges patients equally Volunteers’ issues► Cooperation with NDMS activation Payment & reimbursement► Mutual compatibility of and Interchangeability of parts and adherence to JCAHC and community disaster plans supplies Hold harmless clauses► Applicability to all disasters regardless of size or proclamation Signatures and capacity John R. Wible, 2013 91
    92. 92. Contractual Liability► Failure to achieve a promised result► Failureto use a standard of care to which you have committed► Failure to render promised services► Liability assumed in a contract with a response partner (indemnification and hold harmless clauses in contracts) John R. Wible, 2013 92
    93. 93. Avoiding/Reducing Liability►Risk 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”) John R. Wible, 2013 93
    94. 94. Internal Practices to Reduce Liability Risk► Credentialing and assignment to appropriate duties► Criminal background checks► Verifying necessary licenses (professional, driving, watercraft)► Clear activation and deactivation procedures► Employee orientation, training and exercises► Employee identification badges John R. Wible, 2013 94
    95. 95. Internal Practices to Reduce Liability Risk (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 debriefing John R. Wible, 2013 95
    96. 96. Practical Advice – Liability, Out of State Providers► Disaster 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 personnel► Brief on state-specific liability issues:  Lic., Good Samaritan, and Med-Mal Laws► Consider using ADPH volunteer system to vet John R. Wible, 2013 96
    97. 97. See Also► Hospitals 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/Hospitals John R. Wible, 2013 97
    98. 98. More Resources - TJCHealthcare at the Crossroads TJC http://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=AF QjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg& sig2=-KywQYc3ldurvHxWQ-WZ3Q John R. Wible, 2013 98
    99. 99. Example Hospital TJC PlanAn example plan is found at: http://www.uhb.org/pnp/dsplan.htm . This is from the State University of New York Hospital System. John R. Wible, 2013 99
    100. 100. Finished – At Last! John R. Wible, 2013 100
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