ARRTC – 2012 Judgment – Proofing and Contracts                                   Spring, 2012                  John R. Wib...
The massive tornado left Tuscaloosas two hospitals swirling in activity. One, in directline of the storm, also suffered da...
Planning - Prime function to minimize the resulting loss of property, injuries, sufferingand death that accompanies a disa...
Increase in alcohol or drug consumption;       Nightmares and inability to sleep;       Concentration and memory problems;...
Identify how hospital will obtain and replenish medications, supplies food, and waterand diesel fuel.Identify how hospital...
The Centers for Medicare and Medicaid Services (CMS,) the Inspector Generalof the United States Department of Health and H...
Strictly follow instructions of medical direction and superiors      Train employees to funnel all pts. To a single or one...
Post-emergency critique of the hospitals emergency response – OSHA Pub. 3152      (1997)Fair Labor Standards Act      Plan...
The plaintiff wants money damagesTypes of Torts     Malpractice and professional liability     General tort liability – ne...
Compensatory damages are the remedy normally awarded by a court to the injuredparty. Punitive damages may also be awarded ...
legislatures do not want to exempt volunteers from responsibility for this level ofwrongful act. But at the same time, thi...
Premises Liability–“Shelterees”     Plan for ―sheltrees‖ – uninjured persons from neighborhood or brought by LE     Some u...
Planning required by NIMS        Planning encouraged and facilitated by ADPH        Plan a part of the State EOP and invok...
•  "Its Not About Me." We need to adopt the idea that life is not about me.       That frees us from worrying about oursel...
triage officer should be debriefed periodically by superiors and the whole processlooked at on an on-going basis by the Tr...
Expert Testimony - "In medical malpractice cases, the plaintiff must prove negligencethrough the use of expert testimony, ...
coverage for HHS/CMS civil penalties; Have high $ ―umbrella‖ gen‘l liability coverage.This may have to be re-insured.Goals...
The New York committee reports that in such scenarios, the focus will have to changefrom doing to best for each patient to...
requires. ADPH is responsible for Emergency Support Function (ESF) #8 —PublicHealth and Medical Services.Governor‟s Powers...
any hospital or a governmental entity        without compensationThe Volunteer Service Act(d) Any volunteer shall be immun...
Agreements     MOUs - involves no payment of money     MOAs – Other party pays ADPH     IMOUs – Intra-departmental agreeme...
Litigation over mutual aid agreements is rare. Most cases have involved employeesinjured during a response, as a result of...
The MOU- Alabama ProspectiveAlabama Hospital Mutual Aid MOU (59 sigs)- Seehttp://www.adph.org/CEP/assets/Mutual_Aid_Compac...
However, participants agree to try to assist and to advise of availability of resourcesthrough Incident Management Systems...
the Network Participant is not reimbursed for the pediatric medical assistance, facilities,supplies or other types of supp...
The example of mutual aid agreements is the ―Metropolitan Area Hospital Compact‖ ofthe Twin Cities. It does the following:...
While these agreements appear to work well, any provisions providing for liabilityprotection in these agreements may be de...
A key aspect of mutual aid agreements is that they do not require that assistance beprovided. No government can commit to ...
The conditions of the agreements may be to provide reciprocal services or to receivedirect payment through specific labor ...
Avoiding/Reducing LiabilityRisk management is approached on two levels: Agency level and Individual level.Avoiding liabili...
More Resources - TJCHealthcare at the Crossroads TJChttp://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&v...
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  1. 1. ARRTC – 2012 Judgment – Proofing and Contracts Spring, 2012 John R. Wible, J.D., General Counsel (Retired) Alabama Department of Public Health Extended OutlineIntroductionTUSCALOOSA, AL (RNN) – April 27, 2011.A horrific storm system that killed more than 300 people in seven states across theSouth 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 Thursday, 163 tornadoes had beenreported 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 campushousing thousands of students, but leveling a large swatch of town with its destruction.Officials are on the ground Thursday assessing the damage and delivering emergencyservices and supplies to the victims of the storm.Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228people in 19 counties had died in Alabama.A state of emergency was declared by the president shortly after the storms ragedthrough.In his statement Wednesday, Obama said he told Alabama Gov. Robert Bentley, R-AL,he had ordered the federal government to move swiftly in its emergency response."I approved his request for emergency Federal assistance, including search and rescueassets," Obama said.Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossingboats from a store into an apartment complex, ripping holes in rooftops and destroyinga swath of restaurant establishments along a bustling street."I dont know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN."Were used to tornadoes here in Tuscaloosa. Its part of growing up. But when youlook at the path of destruction thats likely 5 to 7 miles long in an area half a mile to amile wide ... its an amazing scene. Theres parts of the city I dont recognize, and thatssomeone thats lived here his entire life."Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday,search and rescue personnel looked for victims who could be buried beneath therubble.1|Page
  2. 2. The massive tornado left Tuscaloosas two hospitals swirling in activity. One, in directline of the storm, also suffered damage from the twister."Were estimating around 600 were treated at DCH Regional Medical Center," said BradFisher, 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 onlyrestored in the wee hours of morning.More than 100 patients per hour flooded their doors immediately after the storm, Fishersaid. The hospital admitted 92 people and reported five dead as of Thursday morning."Our numbers will increase today," Fisher said. "Business in the ED is steady, so werenot done.DCH Could Have Been Hit- What If ?????Government Authority to Act in Emergencies: ModelAt height of emergency – authority is at its peak. Broad discretion exists under bothstate and federal laws for the executive – including police and public health officials – totake actions deemed necessary to reduce imminent threats to life, property, and publichealth and safetyWhen the crisis is brought under control – when there are no longer imminent threatsto life, property, and public health and safety requiring immediate action, the scope ofauthority is reduced – as need to protect other values and individual rights, resumenormal roles.Further, once immediate threats to life and to public health, safety, and property areaddressed, all those involved in a response will necessarily be faced with the challengeof paying for the loss and damage that has been sustained.So the role of the lawyer becomes more and more important as the emergency movesfrom the crisis to the recovery phase.Legal issues are still very important even at the height of a crisis – and choices madeduring crisis moments can have a substantial impact on how losses and damages arepaid for after the event.-The Eye of the Storm- What Really Happens in a DisasterDisaster/PlanningDisaster -Any emergency that disrupts normal community function causing concern forthe safety of its citizens.2|Page
  3. 3. Planning - Prime function to minimize the resulting loss of property, injuries, sufferingand death that accompanies a disaster.Goal - to minimize resulting injuries, suffering, and provide continued quality care tothose patients in the hospitalSo, 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?What happens in a disaster? CERT Training from FEMA tells us what we really alreadyknow. Disaster survivors normally experience a range of psychological and physiologicalreactions, the strength and type of which depend on several factors: prior experiencewith the same or a similar event; intensity of the disruption; length of time that haselapsed between the event occurrence and the present; individual feelings that there isno 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 toworkers varies according to the stages from exuberant following of instructions todisbelief and disgruntlement.Psychologically, they may be subject to certain physiological and physiologicalSymptoms including: irritability or anger; denial; loss of appetite; self-blame; blamingothers; mood swings; headaches; chest pain; isolation; withdrawal; diarrhea, stomachpain; nausea; fear of recurrence; hyperactivity; feeling stunned, numb, oroverwhelmed; 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 samesymptoms leading to the conclusion that in the end, they may become ―stressed out‖and may make bad choices and the wrong decisions.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;3|Page
  4. 4. Increase in alcohol or drug consumption; Nightmares and inability to sleep; Concentration and memory problems; Sadness, depression and grief;All leading to BAD CHOICESWhat 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 patientsUsual mechanisms for internal communications may not function, establishing lines ofcommunications is vital. Key staff should meet at a designated time and location atleast once daily. Establish emergency communications area / EOC and a commandstructure (NIMS). Establish a plan to communicate information to patients and familiesand other facilities.Other Contemplated Losses Food, water and utensil supply Shortages of meds, disposables and DME o You should anticipate the most critical o Personal Hygiene / Sanitary Supplies o PPE needed o Food, meds and water w/evacuees Staff and Security losses Handling waste: medical and other Transportation and fuelIdentify reporting relationships in hospitals incident command structure and addressstaff 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 facilityin the event the call-in number is not working.4|Page
  5. 5. Identify how hospital will obtain and replenish medications, supplies food, and waterand diesel fuel.Identify how hospital will share such resources with area health care providersHow hospital will transport patients, their medications, supplies, clinical information,equipment and staff to alternate site .Clarify and identify roles of community security agencies for management of hazardouswaste and materials and provisions for radioactive, biological and chemical isolation anddecontamination. Plan for control of personnel within the facility, and vehicles thataccess the facility during an emergencyDesignate individual to monitor emergency broadcasts/alerts via battery operated TV orradio.Consider what secondary communication methods are available: Cell phones, text, HamCommunication with vendors and essential service providers.Internet – remember that even if you have power and internet connection, regulatoryagencies may not.Notifying external authorities, employees, staff, patients and families that emergencyresponse measures have been initiated is important.Communications with area health care organizations, regarding contact information,resources and assets that are available to be sharedCommunications about patient names with area health care entities and third partiesState Department of Health, Police, FBI, etc. must also be maintained.Avenues for Liability Federal Issues Criminal Issues Administrative Issues Civil Issues o Torts o ContractsFederal Law Causes of Action1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation ActHIPAA; EMTALA; FMLA; FLSA (wage and hour); OSHA; and FDA.5|Page
  6. 6. The Centers for Medicare and Medicaid Services (CMS,) the Inspector Generalof the United States Department of Health and Human Services (IG/HHS,) theDepartment of Justice, Medicare and Medicaid Fraud and Abuse Division(DOJ) and any other combination of alphabet-soup regulatory agencies atthe federal and state level when they either refuse to pay you or threaten toinvestigate you for fraud.Affected federal laws can include: Americans with Disabilities Act, Rehabilitation Act of1973, Section 504, EMTALA, HIPAA, Pure Food, Drug and Cosmetic Acts (medicines andmedical devices,) the "Common Rule" involving research with human subjects, WageandHour (FLSA), "80 hour a week rule for medical residents" rule, OSHA, CMSreimbursement 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 of2009The ―Golden Rule of Documentation:‖ If it ain‘t wrote down it didn‘t happen! The way itis wrote down is the way it happened regardless of the way it happened!Confidentiality- Access to RecordsGeneral rule – (Privacy Rule) All patient information is strictly confidential. You mustmaintain patient information confidential outside the necessary situation. However –exceptions in emergency situations- 45 CFR 164.512 – emergency personnel and lawenforcement.Imperatives for Protecting PHIImprovements in health care and community health require responsible sharing of somePHI. In the absence of privacy protections, patients and others may avoid some clinical,public health and research interventions to their detriment. Individual privacyprotections must balance with legitimate community uses of PHI, i.e., health researchand public health.Methods to Avoid Liability – DCH suggestions Have only one or two voices to media and the public, IE., thousands of calls Train employees to route pts. to triage regardless of ingress 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 Avoid inappropriate behaviors Participate in QA/QI and Con-Ed programs Know and follow policies , protocols, procedures, laws and regulations Strictly adhere to training protocols6|Page
  7. 7. Strictly follow instructions of medical direction and superiors Train employees to funnel all pts. To a single or one of specified triage sites 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. o It only IDs pt. and tells status. No PHI to inadvertently release o Hospital spokes person or receptions on phone have access to this system and can locate pts. For press and family members w/o giving PHI. o Technically, even the name of the patients is PHI, but that‘s minor. o Have only one or two voices to media and the public, IE., thousands of calls Train employees to route pts. to triage regardless of ingress Document, document, documentDisaster Applicability - DHHS Says:Responding agencies will need to get PHI to respond to emergenciesTherefore a covered entity can disclose PHI to emergency authorities in such an event.Attempt to have prepared systems that minimize non-emergency disclosuresSee 45 CFR 164.512(b) public health activitiesEMTALA - Section 1867, Social Security Act Must triage and stabilize then treat or transfer What if you are in a disaster? o DHC found the Statewide Trauma System to be very helpful o Plan to set up emergency triage sub-stations o Have transfer agreements – where and how  Ambulances – is there prohibitive (exclusive) ordinance?  ADPH bus kits If in a true disaster, unlikely HHS will pursueEvacuation Plan – Have One - And Stick to It Does it violate EMTALA? Plan w/ other facilities to take pts. Plan w/city, county and schools to use vehicles and (importantly) drivers o N.O. didn‘t evacuate in part because though they had busses, they didn‘t have drivers who had deserted Tenet-Memorial Hospital (N.O) settled suit involving evacuation planOSHA in a Disaster – Plan! Have pre-emergency drills implementing plan, using plan & ICS System Establish lines of authority and communication between incident site and hospital personnel. Designate disaster team including ED MDs, nurses, aides and supp. pers. w/PPE Designate alternate sites7|Page
  8. 8. Post-emergency critique of the hospitals emergency response – OSHA Pub. 3152 (1997)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% reimbursementPure Food, Drug & Cosmetic ActBe careful about transferring legend drugs to unlicensed aid stations w/o pharmacy orpharmacist. Plan a work around of this. Work with city to have pre-established aidstations w/pharmacist coverage. Pharmacists can be obtained and dispatched throughADPH volunteer network.Licensure Issues – Bed CapacityCode of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximumbed capacity. This may be exceeded in emergency by contacting ADPH Bureau ofHealth Provider Standards for a temporary waiver. Probably can be done through AIMSThis will not be your biggest problem.The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements related to emergency managementThe hospital has Emergency Operations Plan. The hospital engages in planningactivities prior to developing its written EOP. The hospital prepares for how it will:communicate, manage resources, provide security, staff, and grant privileges to otherpractitioners during emergencies.Criminal Complaints Trespass Assaults and Batteries Theft of property Conversion Offenses involving sexual misconductCivil Liability, Lawsuits, Defenses and Immunities - Torts An actionable wrong under the law o Negligent torts o Intentional torts o Strict liability -Probably not a concern here Recoverable in a civil action against you Filed in Circuit Court8|Page
  9. 9. The plaintiff wants money damagesTypes of Torts Malpractice and professional liability General tort liability – negligence for an act or omission o Economic loss o 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)NegligenceThe failure to act or perform in a particular situation as any other reasonable prudentdispatcher with similar training would act under the same or similar circumstances.Negligence is defined using different words in different states. It is generally defined inthe state‘s case law rather than in statutory law. But however it is defined, negligencecomes down to a failure to use reasonable care under the circumstances, or to act as areasonable person would under the same circumstances. The operative word is―reasonable.‖The standard is essentially the same for professionals. The difference is that the―reasonable person‖ that a professional is compared to is another professional withsimilar background and expertise.In both professional and general liability claims, bad results alone are not enough tosupport 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 youneed to be familiar with your state‘s law. Basically they come down to a duty to usedue 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 anegligence 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 hospital‘s inadequate internal procedures for selecting, assigning and monitoring employees.The consequences of negligent acts that result in damage will generally be injury orproperty damage.9|Page
  10. 10. Compensatory damages are the remedy normally awarded by a court to the injuredparty. 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‘tenough . Professional liability – failure to use the degree of skill and care expected of aperson in the professionNegligent Torts ExaminedNegligent torts arise from the failure to use reasonable care under the circumstances,causing recoverable damages. The ―reasonable man‖ test‖ is applied. Bad results aren‘tenough.Professional liability – failure to use the degree of skill and care expected of a person inthe profession.Proving Negligence ―Intent to cause harm‖ is not required Four things are required to be proved o Duty o Breach of the duty o Injury or damage o Proximate cause―Punnies” Award for:Gross negligence - reckless disregard of the consequences to the safety or property ofanother or 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 negligencePunitive damages are awarded for wrongful acts that are so severe that the lawimposes additional civil damages as a deterrent. Punitive damages are awarded inaddition to compensatory damages, and are not related to the injured party‘sactual 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 thestate‘s law.It is important to know what these terms mean because the federal VolunteerProtection Act, as well as many state volunteer protection acts, do not protectvolunteers against wrongful acts that rise to this level. It is understandable that10 | P a g e
  11. 11. legislatures do not want to exempt volunteers from responsibility for this level ofwrongful act. But at the same time, this exemption opens a big door in theprotection awarded hospitals.Exceeding the Scope of PracticeAnother important liability concept for professionalProfessional‘s is scope of practice. One general definition of Scope of practice is on thisslide: ―The range of professional activities that a licensed professional is permitted toperform under a state licensing statute, further defined by the professional‘s experienceand training.‖So there are two sets of constraints on any professional‘s scope of practice: thelicensing statute and the professional‘s own demonstrated abilities. Some states aremore specific than others, so it certainly pays to know what your state statute says.Standard of CareEstablishing – can be set by statute or by governmental rule or by the courtMeasures of determining the standard Behavior is compared with others with similar training and experience Compared w/ locally accepted standards Compared to statutes or administrative rules Compared with professional standards published nationallyI have a plan to alter the std. in emergency. Involves the Governor‘s proclamation of astate of disaster and the adoption of your hospital disaster plan.Breach of the Standard of CareAnother important liability concept is professional standard of care, which is basicallyjust the ―reasonable person‖ negligence standard modified for a professional servicesenvironment . Standard liability issues center around whether the hospital and itsprofessionals have 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. 1992Malpractice: professional misconduct or demonstration of an unreasonable lack of skillwith the result of injury, loss, or damage to the patient.Med-Mal is subject to a special statute. See Code of Ala. 1975 §§ 6-5-480, et seq. andCode 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 liability11 | P a g e
  12. 12. 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 securityNegligent Hiring, Training, Supervision or RetentionAn employer can also be responsible for the acts of employees on grounds of negligenthiring, supervision or retention. This is direct liability – the ―employer‖ is liable for itsown failure to use due care in the employment process. It basically holds theemployer responsible for negligently placing an Employee in a position to do harm toothers.Direct liability of an employer for acts or omissions of employees based on theemployer‘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.Respondeat SuperiorThe master is responsible for the acts or omissions of his/her servant committed ―withinthe scope and line of duty‖ when not on a ―frolic and detour.‖ The hospital isresponsible for the acts of personnel in the line of duty, though not ―independentcontractors.‖ Doctor is responsible for the nurse under his/her control.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 –: probability of an event, gravity of potential injury, and burden in adequate precaution – See Lacoste v. Pendleton Methodist Hospital. Supreme Court of Louisiana. 2006Punitive Damages – wanton and willful misconductFailure to Plan: I would submit that the standard is already set and duty to plan isestablished.Planning required by Joint Commission12 | P a g e
  13. 13. Planning required by NIMS Planning encouraged and facilitated by ADPH Plan a part of the State EOP and invoked by order of the Governor in an event. Judgment Proofing and defensesThere is always some who will want to sue you, and always a lawyer who will take thecase. So, there‘s no such thing as being ―law-suit proof,‖ rather, we speak in terms of―judgment proofTwo Very Important Ques. Can you make the hard calls? How much risk are you willing to plan to take? Don‘t be deciding in the middle of the disaster, think it out beforehand with advice from insurance agent and lawyer.Making Hard Calls - Principles"To Tell the Truth, the Whole truth and nothing but the Truth" -We must firststudy and learn the absolute truths and never vary from them. If we devote our totalallegiance to the truth, we will be free to make ethical decisions without fear of makinga mistake, (not without making mistakes, but without fear of making mistakes) andwithout fear of the consequences because, if we have followed the truth, we are notresponsible for the consequences, the truth is responsible for the consequences. It iswhen we do not follow the truth, that we transfer the responsibility for failure toourselves.―There is absolute truth. In the planning process, there are certain rules, facts andprinciples that will have to be applied. It is your duty to know these ―truths..‖ beforeyou start planning. • The "No Delta Principle"- Ethical principles do not change no matter the situation, only the application of them. Moral Relativism is a myth. • ―Free at last, free at last!” You will know the truth and the truth shall make you free. • ―The Principle of the Plumbline" - In the storm, we make our decisions by applying the plumb line and level of the truth. •"Well Sing in the Sunshine"- To the extent practicable, we pre-plan disasterdecisions 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 notonly 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.13 | P a g e
  14. 14. • "Its Not About Me." We need to adopt the idea that life is not about me. That frees us from worrying about ourselves and frees us to make these plumb and square decisions.―The Nike Principle – We are all familiar with Nike‘s famous slogan, ―Just Do It.‖ Justdo 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!Planning -“Bryant‟s Rule” - Patton‟s CorollaryHave a Plan, work your Plan, plan for the Unexpected. Plans must be simple andflexible, made by the people who are going to execute them.Plan “Beyond Your Wildest Dreams” Plan must be beyond your ―wildest dreams.‖ o -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 ADPHTriage Planning - Whatever method is decided upon, may I offer several points:It needs to be decided now. Have a plan now. It is a moral failure to put off such amomentous decision until there is no time to reach a good decision. University ofPittsburgh‘s Professor Tabery urges the use of a Triage Review Board including anadministrator, physicians, nurses, clergy, ethicists, and community persons at large tooversee the use of triage on a very frequent basis for practical as well as ethicalreasons including the need to ―engage the public‖ at pre, during and post stages of thepandemic or disaster. At this pointing the debate, the method to be used, if not agreedupon (and that is entirely possible that it will not be agreed upon,) it should at least beformulated with wide input.Professor Tabery‘s thoughts do have much to lend themselves to the utilitarian. Hestates that a good plan needs a Triage Officer – the initial person making these life anddeath 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‖ andperseverance. It should be constantly reviewed during the implementation phase. The14 | P a g e
  15. 15. triage officer should be debriefed periodically by superiors and the whole processlooked at on an on-going basis by the Triage Review Board.Modern Disaster TriageProfessor James Tabery states of the ethics of triage in disaster situations that therehas been or is in the process of becoming switch from standard medical ethics with theprimary focus on individual autonomy to an ethics of public health with a primary focuson the health of the community, with the overarching goal being to minimize morbidityand mortality during the pandemic. Professor Tabery then takes the Bentham/Kantdebate into the 21st Century in looking at models for triage: Utilitarian v. Egalitarian. Inother words, given scarce resources, do the workers address the needs from the basisof for whom they can do the most good, or to those who are in greatest need?Specific Template for Disaster Planning-Vent. Triage ESF 8ADPH develops a template for disaster planning and resource allocation, the VentilatorTriage. We recommend you adopt it as your plan. It may give state agency immunity.See http://www.adph.org/CEP/assets/VENTTRIAGE.pdfStatute of LimitationsSet time period for injured party to file lawsuitTorts -Generally 2 years Includes wrongful death, PI, and A & B Trespass – 6 yearsContracts – Generally 6 years Could include personal injury under contract See more laterS/L – Med Mal more or less 4 years. All actions against health care providers must becommenced 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 havebeen discovered within the two-year period, then the action may be commenced withinsix months from the date of such discovery or the date of learning of facts that wouldreasonably lead to such discovery, whichever is earlier. Ala. Code § 6-5-482 (1993).Although this statute of limitations is subject to tolling for minority or disability, in noevent may an action be brought more than four years after the act or omission, exceptthat a minor who is under the age of four at the time of the act or omission accrueshas until his eighth birthday to commence an action. Id. The constitutionality of thestatute has been upheld. Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986). Awrongful death action must be brought within two years after the decedents death.Ala. Code §§ 6-2-38 and 6-5-410 (1993).This "statute of creation" is not subject to any tolling provisions and applies in wrongfuldeath cases even if the cause of death is medical malpractice. Cofer v. Ensor, 473So. 2d 984 (Ala. 1985); McMickens v. Waldorp, 406 So. 2d 867 (Ala. 1981)15 | P a g e
  16. 16. Expert Testimony - "In medical malpractice cases, the plaintiff must prove negligencethrough the use of expert testimony, unless an understanding of the doctors allegedlack 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 suchsituations as a foreign object left after surgery or an injury remote from the part ofthe body being treated. Dews v. Mobile Infirmary Assn, 659 So. 2d 61 (Ala. 1995). Ahealth care provider may testify as an expert witness in any action against anotherhealth care provider based on a breach of the standard of care only if he or she is"similarly situated," as defined by statute. Ala. Code § 6-5-548 (Supp. 1997).This means, in part, that expert witnesses against a physician accused of negligencemust be certified in the same specialty and must have practiced within the previousyear. Id.; Malcolm v. King, 686 So. 2d 231 (Ala.1996).Damage Caps for HCAsCode of Ala.1975 § 22-21-318(2) caps damages against a ―health care authority‖ at$100,000. This does not apply to a for-profit hospital nor does it apply to a purelycounty or municipal owned hospital.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 MDs can be thousands or even tens of thousands EMTs around $200 per year through NAEMT Nurses around $200 - $400 depending on coverage Hospital carries general liability and D & OTypes of Med-Mal InsuranceClaims-made insurance - covers insured party for claims made only during the timeperiod policy was in effectOccurrence insurance - covers the insured party for all injuries and incidents thatoccurred while policy was in effect regardless of when claim is madeLimits – Usually $1-3 Million including defense costsHospital InsuranceIn addition to med-mal, you should cover premises liability – Agree w/ co. & know whatis (in)(ex)cluded. Ask questions. We are in a ―soft market,‖ therefore you may be ableto negotiate additional coverages w/ Pro Assurance, Coastal or McNeary. Consider16 | P a g e
  17. 17. coverage for HHS/CMS civil penalties; Have high $ ―umbrella‖ gen‘l liability coverage.This may have to be re-insured.Goals -Altered Standards of CareThe New York State Departments of Agriculture and EnvironmentalConservation estimate that in a ―moderate‖ pandemic influenza event, patients willmost 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 scarceresource situation; this leads to a discussion of the ethical and legal basis for AlteredStandards of Care. When is it permissible from an ethical and legal standpoint toprovide less than the care normally expected or held to be what is referred to in boththe medical and legal professions as the standard of care?‖When it permissible from an ethical and legal standpoint to provide less than the carenormally pr traditionally expected or held to be what is referred to in both the medicaland legal professions as the ―standard of care‖?Healthcare Research and Quality (AHRQ) and the Office of the Assistant Secretary forPublic Health Emergency Preparedness (OASPHEP) within the U.S. Department ofHealth and Human Services (HHS) convened a blue ribbon working group. In theirreport, 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-eventFocus 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 changes17 | P a g e
  18. 18. The New York committee reports that in such scenarios, the focus will have to changefrom doing to best for each patient to maximizing the most lives saved. They recognizethat such consideration will affect current patients already in the hospital for other, non-related illnesses and injuries. They also recognize that the usual scope practicestandards will of necessity change, equipment and supplies will need to be rationed,documentation standards will change, and [basically, bodies will pile up.]Emergency Management -Under Code of Ala.1975, § 31-9-2:Governor proclaims an ―emergency‖ defined as: Enemy attack, sabotage or ―other hostile action;‖ Fire, flood and ―other natural causes.‖The definition is broad enough to cover B/T incidents or naturally occurring events likehurricanes and tornadoes.Amendments add ―Public Health Emergency‖ - Under HB 107, ―Public health emergency,‖ isdefined 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.‖Governor Proclaimed EmergencyThis would activate the State Emergency Operations Plan (EOP). Specifically activationof Tab A (Pandemic Influenza) to Incident Annex A (Biological Incident Annex) . Due tothe complex nature, the Department of Public Health has developed differentoperational plans to deal with mass distribution of countermeasures and pandemicinfluenza. The two plans are the Strategic National Stockpile Plan (SNS Plan) and thePandemic Influenza Operational Plan (PI Plan). These plans can be utilized together orseparately. They complement each other, and serve as the operational response to abiological incident in the State of Alabama. The Alabama Emergency ManagementAgency will activate the State Emergency Operations Center for biological incidents asrequired by following the same process and protocol as for any other disaster impactingthe state.A unified command will be established between agencies such as the AlabamaEmergency Management Agency, Alabama Department of Public Health, AlabamaDepartment of Homeland Security, Alabama Department of Public Safety, AlabamaDepartment of Agriculture and Industries and/or other agencies as the situation18 | P a g e
  19. 19. requires. ADPH is responsible for Emergency Support Function (ESF) #8 —PublicHealth and Medical Services.Governor‟s PowersIn addition to those earlier listed, §31-9-6 also provides authority to: Make orders, rules and regulations; To utilize all state employees; To utilize any state or local officers or agencies, granting state officer immunity to such, including volunteersPersonal Liability Protections. Code of Ala, 1975 §31-9-16 provides that:Except for willful misconduct, gross negligence or bad faith, any ―emergencymanagement worker‖ (EMW) is granted state officer immunity. Requirements forlicenses to practice do NOT apply. ―Emergency worker‖ is anyone helping out whetherpaid or not. The business or corp. is also an EMWProperty Protections - § 31-9-17 provides similar liability protections apply to thosepermitting the state to use their real propertyVolunteersTJC MS 4.110 - Disaster privileges may be granted when the hospitals emergencymanagement plan has been activated and the hospital cannot manage immediatepatient 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 "protocol" for issuance of disaster privileges to independent license practitioners Consider using ADPH volunteer registry to have volunteers pre-vetted and qualified Also, such volunteers may be ―state agents‖ and thus subject to immunity. Further state agents do not transfer liability to the agency The ―guy who shows up with a chainsaw‖ should be routed to the Red Cross.The Volunteer Service Act§ 6-5-336. Volunteers Defined. (a) This section shall be known as "The Volunteer Service Act.―VOLUNTEER. A person performing services for a nonprofit organization, a nonprofitcorporation, a hospital, or a governmental entity without compensation, other thanreimbursement for actual expenses incurred. The term includes a volunteer serving as adirector, officer, trustee, or direct service volunteer.A person performing services for: a nonprofit organization or corporation19 | P a g e
  20. 20. any hospital or a governmental entity without compensationThe Volunteer Service Act(d) Any volunteer shall be immune from civil liability in any action on the basis of anyact 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 volunteersofficial 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 suchvolunteer.(e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital forcivil damages based upon the negligent act or omission of a volunteer, proof of such actor omission shall be sufficient to establish the responsibility of the organization thereforunder the doctrine of "respondeat superior," notwithstanding the immunity granted tothe volunteer with respect to any act or omission included under subsection (d). ContractsWhat is a ContractSimply, an exchange of mutual promises, written or oral to do legal acts.Types of Instruments Contracts Grants Be n e f it Agreements Amendments Purchase OrdersElements of a contract Offer, Acceptance, Consideration Detrimental Reliance ―Boiler plate‖ ―In writing‖Contract Suggestion - DCHJust in time contracts – work with contractor, IE., Cardinal, to establish pre-packagedkits, like ―push-pak,‖ for main and alternate sites. Make sure supplier contracts andcontractors have connections to get your supplies, like generators, in a hurry and canhandle volume. Make sure it‘s in writing or at least followed up with a letter stating yourunderstanding of the verbal agreement20 | P a g e
  21. 21. Agreements MOUs - involves no payment of money MOAs – Other party pays ADPH IMOUs – Intra-departmental agreements Letter Agreements – miscellaneous itemsAmendments – Use the same formalities as the instrument which it amends and thesame process as the instrument which it amends.Mutual Aid: Key CharacteristicsMutual aid can cover a wide range of activities and arrangements between numerousdifferent levels of government. Frequently, mutual aid agreements are not only inwriting but also authorized by special legislation.For example, in 2004 Congress enacted special legislation to facilitate mutual aidbetween jurisdictions in the National Capital Region; these arrangements had beenhindered by the significant differences in tort liability in the State of Maryland, theCommonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458,__ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF2004). The statutory solution here was to provide that the law and court system of aresponder‘s home jurisdiction would apply to lawsuits against the responder and his orher employing jurisdiction.A key aspect of mutual aid agreements is that they do not require that assistance beprovided. No government can commit to send resources elsewhere in advance withoutknowing whether those resources are required to handle its own problems.Mutual Aid: Key CharacteristicsSome mutual aid agreements do not provide for compensation. These agreementsnormally cover small scale incidents requiring limited resources and a relatively shortduration. For emergency response, however, the cost of providing extensive resourcesover 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, thenthe costs charged under the mutual aid agreement would also be reimbursable – butonly if the mutual aid agreement is in writing and requires compensation. See FEMAPublic Assistance Policy No. 9523.6, ―Mutual Aid Agreements for Public Assistance.‖(September 22, 2004).21 | P a g e
  22. 22. Litigation over mutual aid agreements is rare. Most cases have involved employeesinjured during a response, as a result of legal uncertainty over whether workman‘scompensation limitations applied and which jurisdiction was responsible.In the absence of dispute resolution provisions in the mutual aid agreement, disputesbetween requesting and responding jurisdictions may be litigated in a court withjurisdiction over the parties and subject matter. For example, original jurisdiction overdisputes between states is in the United States Supreme Court.EMAC provides that any employee of responding jurisdiction is deemed to be licensed inthe requesting jurisdiction.Intrastate Mutual AidNorth Alabama Mutual Aid Compact: Lauderdale, Colbert, Franklin, Marion, Lawrence, Winston, Walker, Limestone,Morgan, Cullman, Blount, Madison, Marshall, Jackson, DeKalb, CherokeeSouth Alabama Mutual Aid Compact: Baldwin, Butler, Choctaw, Clarke, Coffee, Conecuh, Covington, Crenshaw, Dale,Dallas, Geneva, Henry, Houston, Lowndes, Marengo, Monroe, Montgomery, Pickens,Pike, Sumter, Tallapoosa, Washington, WilcoxNational Emergency Management Association has developed a Model Intrastate MutualAid Agreement to assist states in reviewing their existing legislation.http://emacweb.org/docs/NEMA%20Proposed%20Intrastate%20Model-Final.pdfPer that document- 27 States had formal agreements as of February 2004Those 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, and WIAn additional 4 states & 1 territory were drafting a proposal before their legislature, asof 2/04 including: DE, NM, NY, OK & 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 The Urban Lawyer is publishing an extensive article on intergovernmental agreements and liability concerns in early 2005.22 | P a g e
  23. 23. The MOU- Alabama ProspectiveAlabama Hospital Mutual Aid MOU (59 sigs)- Seehttp://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.docMOUs define rights and responsibilities only: Parties: ADPH, hospitals, other providers, responder communities, other regional parties Disaster – proclaimed, declared or not Limitations – players and resources The need: identifying & providing resources, personnel and & care and moving patientsThe MOU - Purpose • Purpose - the Network was created and organized to identify resources to support the coordination of local, state, and multi-state resources to respond to an emergency or disaster, both natural and man-made, that exceed the resources of one or more Network Participants. • The Network identifies, utilizes, and participates with a variety of health care facilities 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 Participants emergency operations plan (EOP). This document does not replace but rather supplements the governing law, rules and regulations and procedures and protocols governing interaction with, and among, other organizations during a disaster (e.g., EOP of the State, emergency management agencies, law enforcement agencies, the local emergency medical services, state and local public health departments, fire departments, and nongovernment disaster response agencies (NGO) such as the American Red Cross.MOU – Not ObligatoryNo party is legally obligated to accept patients or send staff, supplies or resources whento do so would compromise its local service mission. This agreement is entered intovoluntarily and the Network Participants are not obligated to offer any support orassistance; however, Network Participants agree, in the event of a Disaster, to usereasonable efforts to make pediatric clinical staff, medical and general supplies,including pharmaceuticals, and biomedical equipment (including, but not limited toventilators, monitors and infusion pumps) available to each another. Each NetworkParticipant shall be entitled to use its reasonable judgment regarding the type andamount of staff, supplies and equipment it can provide without adversely affecting itsown ability to provide essential services.23 | P a g e
  24. 24. However, participants agree to try to assist and to advise of availability of resourcesthrough Incident Management SystemsThe purpose is to coordinate sending and receiving of patients, staff, equipment, staffand resources through the EOCsMOU – Normal EMA ChainRequests for mutual assistance follow the normal process of requesting assistancethrough the local Emergency Management Agency and, if appropriate, the localEmergency Management Agency will escalate the request to the appropriate Regionstate Emergency Management Agency and if needed the state Emergency ManagementAgency may escalate requests at the Federal level.The Network, through the Emergency Operations Centers will coordinate effortsbetween Network Participants and Region state Emergency Operations Centers toensure appropriate transfer of pediatric patients and optimal utilization of pediatrichealth care resources within the Region.Each Network Participant signatory will identify a point of contact who is familiar withthe Network, hereinafter known as a ―Designated Representative,‖ who has operationalauthority to act as a liaison with the Network during any revisions of this NetworkMemorandum of Understanding and to communicate with the Network and theappropriate individuals within the representative‘s own organization in the event of aDisaster. The Designated Representative or delegate individual shall attend meetingsand conferences scheduled by the Network to discuss issues related to this Networkand if needed, to revise the Network Memorandum of Understanding. The DesignatedRepresentative or delegated individual shall act as a liaison with representatives of theNetwork Participants in the event of a Disaster.The Network Participants agree to communicate and coordinate their response effortsvia their Designated Representatives who have operational authority to commit theresources of the Participant as specified in the Participant Emergency Operations Plan.In the event of a Disaster, Network Participants agree to inform their non-employeemedical staff members of any requests for assistance and offer them the opportunity tovolunteer their professional services. Network Participants shall cooperate with eachother to provide in a timely manner the information necessary to verify employmentstatus, licensure, training and other information necessary in order for such volunteersto receive emergency credentials.MOU Reimbursement, Non-Exclusivity, WithdrawalNetwork Participants cannot guarantee reimbursement for pediatric medical assistance,facilities, supplies or other types of support. However, to the extent thatreimbursement may be available, every effort will be made to obtain suchreimbursement through federal or other monies as they become available as long as24 | P a g e
  25. 25. 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 partypayor.To ensure effectiveness, Network Participants will be given an opportunity to participatein periodic Network training exercises (exercise and drills) simulating disaster eventsaffecting the Region.Network Participants bear no liability or responsibility for any claim, loss or damagearising out of or in conjunction with voluntary participation in the Network.Nothing in this agreement shall be construed as limiting the rights of the NetworkParticipants to affiliate or contract with any other entity or operating an entity or otherhealth 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 bygiving a thirty (30) day written notice to the other parties. However, if no such noticeis given, the Network agreement remains in effect in perpetuity.MOU - LiabilityParticipants assume no liability merely by becoming a signatory to the MOUHowever, participants may be liable for acts and omissions of their staff in performanceunder the MOU or governmental ordersAlso, in following their pre-approved plan, in case of Declaration by Governor, theremay be certain immunities for staffTransportation/EMS ContractsOut of state ambulances are forbidden to make point to point runs within the state.Otherwise, state EMS rules allow full use of ambulances from out of state into the state.Rules could be waived. Even so, would there be enough ambulances in a disaster if allhospitals contract w/ same EMS ambulance Co? What other vehicles could be used? Common carriers School & municipal bussesTransfer 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)?Private Agreements25 | P a g e
  26. 26. The example of mutual aid agreements is the ―Metropolitan Area Hospital Compact‖ ofthe Twin Cities. It does the following: • specifies that the agreement is not a legally binding contract; rather it outlines a general policy of cooperation and coordination in the event of a disaster. • emphasizes that the agreement is voluntary. • designates a mechanism through which signatory organizations can communicate with one another to request aid in the event of a disaster. • requires a signature of the organization‘s representative.It addresses: • Communications including liaison officers, EOCs, includes a joint public information center provision • Forced evacuation – distributes patients equally • Cooperates with NDMS activation • Requires reporting of bed capacity. (In Alabama use AIMS ) • Discusses auxiliary locations in sever disaster and how each hospital will contribute personnel to man such a facility • Discusses sharing of staffTypes of Mutual Aid Agreements - EMACEMAC affords states providing and receiving post-disaster assistance the ability to moveequipment and people across state lines rapidly by establishing systems and protocolsfor: 1. the acceptance of out-of-state medical licenses; 2. the recovery of costs incurred by states providing assistance; 3. legal liability claims that arise from the activities of out-of-state workers; and 4. workers‘ compensation payments should those out-of-state workers be injured or killed while responding to the disaster.In short, EMAC provides for ―mutual assistance between states … in managing anyemergency or disaster that is duly declared by the governor of the affected state(s),whether arising from natural disaster, technological hazard, man-made disaster, civilemergency aspects of resource shortages, community disorders, insurgency, or enemyattack.‖Intrastate Mutual Aid – one local government to another.Interstate and Regional Mutual Aid – International „Mutual Aid‟ Can involveaid from one country to another – e.g., Australia and Canada both provide fire fightingassistance to the US Forest Service in heavy fire fighting years – or between states,provinces, and local governments along the US-Canada or US-Mexico borders. Underthe US Constitution, no state may enter into any agreement with a foreign powerwithout the consent of Congress. Article 1, Section 10. Many jurisdictions on theborder have not sought congressional approval for intergovernmental agreements.26 | P a g e
  27. 27. While these agreements appear to work well, any provisions providing for liabilityprotection in these agreements may be declared invalid if it were ever scrutinized inlitigation.Emergency Management Mutual Assistance Compact (EMAC)EMAC is designed to: authorize mutual aid with other states; Facilitate licensure (deemed status) and immunities of other state‘s workers; Permit condemnation, seizure and compensation of facilities and property; Coordinate evacuation; and direct all civilian officers.It has 49 states as signatories to EMAC. Only California is not, and they can‘t make uptheir minds whether they‘re in or not.Interstate Mutual Aid • Interstate compacts require the consent of Congress under the US Constitution. This approval was provided in 1996. PL 104-321, October 19, 1996, 110 Stat 3877. In Alabama, see 31-9-7. • Under a Federal Stafford Act Declaration, EMAC requests Coordinated through EMAC personnel at JFO if appropriate. • The National Incident Management System is developing a system for describing clearly the different kinds of resources that can be provided under mutual aid agreements – to assure that the responding jurisdiction knows exactly what resources are being requested. This initiative is called ―resource typing‖ and is being conducted in coordination with the member states of EMAC.EMAC provides that any employee of responding jurisdiction is licensed in therequesting jurisdiction.Mutual Aid: Key CharacteristicsMutual aid can cover a wide range of activities and arrangements between numerousdifferent levels of government. Frequently, mutual aid agreements are not only inwriting but also authorized by special legislation.For example, in 2004 Congress enacted special legislation to facilitate mutual aidbetween jurisdictions in the National Capital Region; these arrangements had beenhindered by the significant differences in tort liability in the State of Maryland, theCommonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458,__ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF2004). The statutory solution here was to provide that the law and court system of aresponder‘s home jurisdiction would apply to lawsuits against the responder and his orher employing jurisdiction.27 | P a g e
  28. 28. A key aspect of mutual aid agreements is that they do not require that assistance beprovided. No government can commit to send resources elsewhere in advance withoutknowing whether those resources are required to handle its own problemsKey CharacteristicsSome mutual aid agreements do not provide for compensation. These agreementsnormally cover small scale incidents requiring limited resources and a relatively shortduration.If the activities performed under a mutual aid agreement are ―emergency measures‖that would otherwise be eligible for federal reimbursement under the Stafford Act, thenthe costs charged under the mutual aid agreement would also be reimbursable – butonly if the mutual aid agreement is in writing and requires compensation. See FEMAPublic 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 employeesinjured during a response, as a result of legal uncertainty over whether workman‘scompensation limitations applied and which jurisdiction was responsible.In the absence of dispute resolution provisions in the mutual aid agreement, disputesbetween requesting and responding jurisdictions may be litigated in a court withjurisdiction over the parties and subject matter. For example, original jurisdiction overdisputes between states is in the United States Supreme Court.EMAC in the Broader SenseEMAC, in the Broader Sense is any agreement for mutual aid that can facilitate themission among or with: The member facilities and their staffs, Suppliers of goods and services, Public health and emergency management, State licensing agencies, State Medicaid agencies and other insurers, Federal agencies – CMS, CDC, FBI, DOJ and Local and state officials.Cost ReimbursementThe formulation of organizational mutual aid agreements is a rapidly growing trend inthe U.S. Many state and local governments, and private for-profit and nonprofitorganizations formulate mutual aid agreements to provide emergency assistance toeach other in the event of disasters or other crises.28 | P a g e
  29. 29. The conditions of the agreements may be to provide reciprocal services or to receivedirect payment through specific labor and equipment rates outlined in the agreements.These agreements usually are written but, occasionally, are by understanding or arearranged after a disaster occurs.The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288,reimburses mutual aid agreement costs associated with emergency assistance providedall of the following conditions are met:1. The assistance requested by the applicant is directly related to the disaster andis eligible for FEMA assistance.2. The mutual aid agreement is in written form and signed by authorized officialsof the agreeing parties prior to the disaster.3. The mutual aid agreement applies uniformly in emergency situations. Theagreement must not be contingent upon a declaration of a major disaster or emergencyby the Federal government or on receiving Federal funds.4. The providing entity may not request or receive grant funds directly. Onlythe eligible applicant receiving the aid may request grant assistance.5. Upon request, the applicant must be able to provide FEMA with documentationthat the services were requested.Criterion 4 indicates that hospitals that have incurred costs through assisting otherhospitals can retrieve those costs through obtaining monies disbursed to the hospitalreceiving the aid.Contractual LiabilityA contract is just a legally enforceable promise between two or more parties. Theydon‘t have to be big legal documents drafted by lawyers. Some contracts must be inwriting, but others can be verbal, or scribbled on the back of a napkin. The elementsgenerally recognized as creating a contract are an agreement between the parties andsome consideration - something of value, not necessarily money- that is exchanged bythe parties.However, remember the rule above, ―if it ain‘t wrote down, it didn‘t happen,‖ so, get itin writing if at all possible.So how can contractual liability come into play for EMS programs? It can surface inseveral ways, which are listed on this slide. One of the most important exposures isassuming liability from the other party in a contract, For example, an EMS program maybe asked to agree in a contract or letter of agreement that it will be responsible for anyliability arising from the activities of its volunteers. This would be the effect of anindemnification and hold harmless clause in the letter of agreement. Or a responsepartner may require the program to have insurance it doesn‘t have, leaving it in breachof contract for failing to have it.29 | P a g e
  30. 30. Avoiding/Reducing LiabilityRisk management is approached on two levels: Agency level and Individual level.Avoiding liability means not being held liable in court (it does not mean ―can‘t be sued‖)Internal Practices to Reduce Liability Risk – Provide for 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 & responsibilities Written engagement/utilization records Procedures for keeping patient treatment notes Rules of conduct and grounds for dismissal Communications procedures Post-incident debriefingPractical Advice – Liability, and Out of State ProvidersDisaster Privileges Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge by staff member) Assign provider to area qualified to work Abbreviated orientation program for emergency personnelBrief on state-specific liability issues such as Licensure, Good Samaritan, and Med-MalLaws. Consider using ADPH volunteer system to vet out of state personnel.Altruistic PatientsPatients who say, ―take her ahead, I‘m not that injured.‖ Remember, ―No good deedever goes unpunished‖ thus regardless of what they say, follow triage protocol anddocument their statements.For A Copy of Presentation and a Paper See ―Ethics Paper 2012‖ a download on Slideshare 7 See several presentations & documents also: http://www.slideshare.net/jwible Blog: http://www.johnwible.blogspot.com Also on FacebookSee AlsoHospitals and Community, Emergency Response - What You Need to Know,Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)TJC Standards on Hospital Emergency Planning: CAMH/Hospitals30 | P a g e
  31. 31. More Resources - TJCHealthcare at the Crossroads TJChttp://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2F%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3QExample Hospital TJC PlanAn example plan is found at: http://www.uhb.org/pnp/dsplan.htm. This is from theState University of New York Hospital System.31 | P a g e

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