ARRTC – 2012 Judgment – Proofing and Contracts - Fall, 2012ARRTC – 2012 Judgment – Proofing and Contracts - Fall, 2012John R. Wible, J.D., General Counsel (Retired)John R. Wible, J.D., General Counsel (Retired)

Alabama Department of Public HealthAlabama Department of Public Health

Extended OutlineExtended Outline

Slide 2. Disaster Comes in Many Forms Slide 2. Disaster Comes in Many Forms

Slide 3. It Could Be Anywhere Slide 3. It Could Be Anywhere Evacuation of LYU Langone MC.Evacuation of LYU Langone MC.

New York City, New York – November 9, 2012New York City, New York – November 9, 201211

Bellevue Hospital remains closed, and NYU Langone Medical Center is not yet accepting inpatients. 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 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 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 flooded rendering its emergency generators inoperative, doctors and nurses combined forces with police, firefighters, and paramedics to transfer over 300 patients successfully from the hospital in the police, firefighters, and paramedics to transfer over 300 patients successfully from the hospital in the middle of the night. middle of the night.

Hospital generators have failed before during the blackouts of 1977 and 1990, but nothing had every 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 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.hospitals, with residents from NYU going along to help transfer care.. . . . . .

1 USA Today, November 9, 2012. http://www.usatoday.com/story/opinion/2012/11/08/hurricane-sandy-nyu-hospital-evacuation/1690615/ Accessed November 9, 2012.1 | P a g e

22NYU didn’t anticipate such heavy flooding from . . . as they did with Hurricane Irene a year ago. NYU didn’t anticipate such heavy flooding from . . . as they did with Hurricane Irene a year ago. However, However, between 7 and 7:45 p.m. Monday, the hospital’s basement, lower floors, and elevator shafts between 7 and 7:45 p.m. Monday, the hospital’s basement, lower floors, and elevator shafts filled with 10 to 12 feet of water, and the hospital lost its powerfilled with 10 to 12 feet of water, and the hospital lost its power. . .. . .

“Things went downhill very, very rapidly and very unexpectedly,” [a hospital spokesperson] said. “Things went downhill very, very rapidly and very unexpectedly,” [a hospital spokesperson] said. “The “The flooding was just unprecedented.”flooding was just unprecedented.”

Emergency generators did kick in, but two hours later, about 90% of that power went out, and the Emergency generators did kick in, but two hours later, about 90% of that power went out, and the hospital decided to evacuate. [...] Four of the newborns were on respirators that were breathing for hospital decided to evacuate. [...] Four of the newborns were on respirators that were breathing for them, and them, and when the power went out, each baby was carried down nine flights of stairs while a nurse when the power went out, each baby was carried down nine flights of stairs while a nurse manually squeezed a bag to deliver air to the baby’s lungs.manually squeezed a bag to deliver air to the baby’s lungs.

“This is a labor intensive, extremely difficult process,” [he] said.“This is a labor intensive, extremely difficult process,” [he] said.About 1,000 staff members — including doctors, nurses, residents, and medical students — worked to About 1,000 staff members — including doctors, nurses, residents, and medical students — worked to evacuate the remaining patients by flashlight, along with the help of firefighters and police officers. [He] evacuate the remaining patients by flashlight, along with the help of firefighters and police officers. [He] noted that NYU’s facility is designed to withstand floods, and only one building flooded during Hurricane noted that NYU’s facility is designed to withstand floods, and only one building flooded during Hurricane Irene. However, Sandy left seven hospital buildings flooded with between seven and ten feet of water. Irene. However, Sandy left seven hospital buildings flooded with between seven and ten feet of water.

Slide 4. New York Patients Transferred. Slide 4. New York Patients Transferred. Further:Further:33

Tuesday morning, Brooklyn's Coney Island Hospital relocated about 180 patients after a blackout Tuesday morning, Brooklyn's Coney Island Hospital relocated about 180 patients after a blackout Monday and being down to a single generator Tuesday morning, according to . . . a spokesperson for Monday and being down to a single generator Tuesday morning, according to . . . a spokesperson for the New York City Health and Hospitals Corp.the New York City Health and Hospitals Corp.

2 Ressler, ThinkProgress-Health, October 31, 2021. http://thinkprogress.org/health/2012/10/30/1109531/hurricane-sandy-forces-new-york-city-hospitals-to-evacuate/?mobile=nc Accessed November 9, 2012.3 Huffington Post, 10/30/2012. http://www.huffingtonpost.com/2012/10/30/hurricane-sandy-hospitals_n_2044000.html Accessed 11/9/2012.2 | P a g e

"We've had significant challenges at many of our hospitals and health care facilities," Mayor Michael "We've had significant challenges at many of our hospitals and health care facilities," Mayor Michael Bloomberg said at a press conference Tuesday. "Fortunately, as of now there has been no storm-related Bloomberg said at a press conference Tuesday. "Fortunately, as of now there has been no storm-related fatalities at any them." Two other Manhattan hospitals, New York Downtown Hospital and the Veterans fatalities at any them." Two other Manhattan hospitals, New York Downtown Hospital and the Veterans Affairs New York Harbor Healthcare System, emptied their beds before the storm hit.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 The New York State Department of Health was still assessing the condition of hospitals outside the city Tuesday morning, said [a]spokesperson . . .Tuesday morning, said [a]spokesperson . . .

One New Jersey hospital, the Palisades Medical Center in North Bergen, had to find beds for 83 patients One New Jersey hospital, the Palisades Medical Center in North Bergen, had to find beds for 83 patients because of the storm, New Jersey Department of Health and Senior Services representative Donna because of the storm, New Jersey Department of Health and Senior Services representative Donna Leusner told HuffPost. The Hoboken University Medical Center shut down Sunday night and relocated 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 131 patients, she said. About 100 New Jersey hospitals, nursing homes and assisted living facilities are running solely on generators, she said.running solely on generators, she said.

As in other locales, New Jersey facilities, including Valley Hospital in Ridgewood and Camden's Cooper As in other locales, New Jersey facilities, including Valley Hospital in Ridgewood and Camden's Cooper Hospital and Lourdes Hospital, preemptively cut back on nonessential services such as elective surgeries 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 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 beganother advance steps, such as moving fragile patients before the storm began

All of Pennsylvania's hospitals are open, but facilities -- especially in the Philadelphia and Lehigh Valley All of Pennsylvania'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 representativeareas -- face electrical outages and some are relying on backup power, said Penny Kline, a representative for the Pennsylvania Department of Health. for the Pennsylvania Department of Health.

The Maryland Emergency Management Agency reports no closures or evacuations of any hospitals or The Maryland Emergency Management Agency reports no closures or evacuations of any hospitals or nursing homes in the state, said Ed McDonough, a representative. nursing homes in the state, said Ed McDonough, a representative.

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McCready Memorial Hospital in Crisfield on the state's Eastern Shore isn't taking any additional patients McCready Memorial Hospital in Crisfield on the state's Eastern Shore isn't taking any additional patients because it's down to backup power, he said. Floodwaters found their way onto the first floor of another because it'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 theEastern 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.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 No hospital or nursing homes closed or relocated patients in Virginia, although three nursing homes are running on generator power, according to Maribeth Brewster, a representative for the Virginia running on generator power, according to Maribeth Brewster, a representative for the Virginia Department of Health. She also reports that the department doesn't expect flooding to pose any Department of Health. She also reports that the department doesn't expect flooding to pose any difficulties for the state's health care facilities.difficulties for the state's health care facilities.

Slide 5. But Even Before Then . . .Slide 5. But Even Before Then . . .

TUSCALOOSA, AL (RNN) – April 27, 2011. TUSCALOOSA, AL (RNN) – April 27, 2011. A horrific storm system that killed more than 300 people in seven states across the South is one of the worst 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.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 been reported by eyewitnesses. In the 24-hour period that ended at 8 a.m. CT Thursday, 163 tornadoes had been reported by eyewitnesses. One of those, a mile-wide tornado that bisected Alabama, killed more than 200 people in that state alone, 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 barely missing a college campus housing thousands of students, but leveling a large swatch of town with its destruction.destruction.Officials are on the ground Thursday assessing the damage and delivering emergency services and supplies to Officials are on the ground Thursday assessing the damage and delivering emergency services and supplies to the victims of the storm.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 Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228 people in 19 counties had died in Alabama.had died in Alabama.

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A state of emergency was declared by the president shortly after the storms raged through.A state of emergency was declared by the president shortly after the storms raged through.In his statement Wednesday, Obama said he told Alabama Gov. Robert Bentley, R-AL, he had ordered the 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.federal government to move swiftly in its emergency response.

Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossing boats from a store In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossing boats from a store into an apartment complex, ripping holes in rooftops and destroying a swath of restaurant establishments into an apartment complex, ripping holes in rooftops and destroying a swath of restaurant establishments along a bustling street.along a bustling street.

"I don't know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN. "We're used to "I don't know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN. "We're used to tornadoes here in Tuscaloosa. It's part of growing up. But when you look at the path of destruction that's likelytornadoes here in Tuscaloosa. It's part of growing up. But when you look at the path of destruction that's likely 5 to 7 miles long in an area half a mile to a mile wide ... it's an amazing scene. There's parts of the city I don't 5 to 7 miles long in an area half a mile to a mile wide ... it's an amazing scene. There's parts of the city I don't recognize, and that's someone that's lived here his entire life."recognize, and that's someone that's lived here his entire life."

Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday, search and rescue Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday, search and rescue personnel looked for victims who could be buried beneath the rubble.personnel looked for victims who could be buried beneath the rubble.

Slide 6. DCH Slide 6. DCH Could Could Have Been Hit- What If ?????Have Been Hit- What If ?????

The massive tornado left Tuscaloosa's two hospitals swirling in activity. One, in direct line of the storm, also The massive tornado left Tuscaloosa's two hospitals swirling in activity. One, in direct line of the storm, also suffered damage from the twister.suffered damage from the twister.

"We're estimating around 600 were treated at DCH Regional Medical Center," said Brad Fisher, DCH "We're estimating around 600 were treated at DCH Regional Medical Center," said Brad Fisher, DCH spokesperson.spokesperson.

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Windows in several patient rooms as well as a waiting area were blown out there.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 Fisher said the hospital was without water for about six hours, and power was only restored in the wee hours of morning.of morning.

More than 100 patients per hour flooded their doors immediately after the storm, Fisher said. The hospital 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.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 we're not done."Our numbers will increase today," Fisher said. "Business in the ED is steady, so we're not done.

Slide 7. Government Authority to Act in Emergencies: ModelSlide 7. Government Authority to Act in Emergencies: ModelAt height of emergency – authority is at its peak. Broad discretion exists under both state and federal laws for 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 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 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 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 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.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 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 involved in a response will necessarily be faced with the challenge of paying for the loss and damage that has been sustained. been sustained.

Legal issues are still very important even at the height of a crisis – and choices made during crisis moments canLegal 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. have a substantial impact on how losses and damages are paid for after the event.

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Slide 8. Slide 8. The Eye of the Storm- The Eye of the Storm- What Really Happens in a DisasterWhat Really Happens in a DisasterThe following article appeared in the Daily Reveille on July 20, 2006: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 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.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 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. injecting patients with lethal doses of Morphine and Versed.

"This is not euthanasia. This is homicide," Attorney General Charles Foti said. "We're talking about "This is not euthanasia. This is homicide," Attorney General Charles Foti said. "We're talking about people who pretended that maybe they were God." people who pretended that maybe they were God."

… The trio allegedly intentionally killed multiple patients by administering or helping administer lethal … 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 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. Hospitals statement that reported possible euthanasia of patients at Memorial Medical Center.

[The Hospital stated:]"I believe this case is a strong one and that these charges are based on sound legal [The Hospital stated:]"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, 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." … I believe that there is no excuse for intentionally killing another living human being."

… [A]ccording to LSU associate sociology Professor Sung Joon Jang, [he] believes the three accused were … [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. likely trying to help and meant no ill harm.

"Their motive was to do something good," Jang said. "At the time it was probably their best judgment. Of"Their motive was to do something good," Jang said. "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 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." that must be addressed. No matter what their decision, their motives could have still been questioned."

… Jang believes the accused three were acting out of compassion, but in Louisiana, euthanasia is against … Jang believes the accused three were acting out of compassion, but in Louisiana, euthanasia is against the law. "The fact is, the law was broken and it is my job to seek justice for the victims in this case," [Louisiana the law. "The fact is, the law was broken and it is my job to seek justice for the victims in this case," [Louisiana Attorney General Charles] Foti said. "It gives me no pleasure to report what happened here today and my Attorney General Charles] Foti said. "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."heart goes out to the families and loved ones of those victims."

In January 29, 2007, the staff members were fired from their jobs. In March of 2007, their case was 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, 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.the New Orleans court expunged Dr. Pou’s record with a promise to do the same for the nurses.7 | P a g e

Louisiana subsequently changed the law to provide more protection for professions in such exigent Louisiana subsequently changed the law to provide more protection for professions in such exigent situations.situations.

Slide 9. Disaster/PlanningSlide 9. Disaster/PlanningDisaster -Any emergency that disrupts normal community function causing concern for the safety of its Disaster -Any emergency that disrupts normal community function causing concern for the safety of its citizens. citizens.

Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death that Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death that accompanies a disaster.accompanies a disaster.

Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in the Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in the hospitalhospital

Slide 10. So, what really happens?Slide 10. So, what really happens? How do people’s relationships change? How do people’s relationships change? Do people think and react differently?Do people think and react differently? Are the consequences the same as if you had reacted “in the sunshine?”Are the consequences the same as if you had reacted “in the sunshine?” The “Outback Steakhouse Question,” are there really “no rules?”The “Outback Steakhouse Question,” are there really “no rules?” How can you “rank” people in order or precedence to receive vaccine, ventilators or treatment accordingHow can you “rank” people in order or precedence to receive vaccine, ventilators or treatment according

to ethical principles?to ethical principles? Can you invoke “altered standards of care?Can you invoke “altered standards of care? What are the rights of staff to desert?What are the rights of staff to desert?

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What happens in a disaster? CERT Training from FEMA tells us what we already know. Disaster survivors What happens in a disaster? CERT Training from FEMA tells us what we already know. Disaster survivors normally experience a range of psychological and physiological reactions, the strength and type of which 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; 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 islength 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 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 varies according to the stages from that their reactions go through stages and that their reaction to workers varies according to the stages from exuberant following of instructions to disbelief and disgruntlement.exuberant following of instructions to disbelief and disgruntlement.

Slide 11. Effects on Victims Slide 11. Effects on Victims and Staffand StaffPsychological, physiological and physiological Symptoms: Psychological, physiological and physiological Symptoms:

Irritability or anger, blaming or denial, mood swings, fear of recurrence, hyperactivity, feeling stunned, Irritability or anger, blaming or denial, mood swings, fear of recurrence, hyperactivity, feeling stunned, helpless, numb, or overwhelmed; helpless, numb, or overwhelmed;

Loss of appetite and energy, headaches, chest pain, and fatigue; Loss of appetite and energy, headaches, chest pain, and fatigue; Isolation, withdrawal, diarrhea, stomach pain, nausea;Isolation, withdrawal, diarrhea, stomach pain, nausea; Increase in alcohol or drug consumption; Increase in alcohol or drug consumption; Nightmares and inability to sleep; Nightmares and inability to sleep; Concentration and memory problems; Concentration and memory problems; Sadness, depression and grief; Sadness, depression and grief;

For our purposes, we know that disaster workers For our purposes, we know that disaster workers maymay go through many of the same symptoms leading to the go through many of the same symptoms leading to the conclusion that conclusion that in the end, they may become “stressed out” and may make bad choices and the wrong in the end, they may become “stressed out” and may make bad choices and the wrong decisions.decisions.

Slide 12. What if Power is Lost as in the recent Northeast Super Storm?Slide 12. What if Power is Lost as in the recent Northeast Super Storm?9 | P a g e

Also lost are:Also lost are: Sewage / water systemsSewage / water systems Lights/Cooling and heating elements Lights/Cooling and heating elements Elevators and automatic doorsElevators and automatic doors Internal and external communicationsInternal and external communications Ability to track and ID patientsAbility to track and ID patients

Usual mechanisms for internal communications may not function, establishing lines of communications is vital.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. We must establish emergency Key staff should meet at a designated time and location at least once daily. We must establish emergency communications with the area, EOC and establish a command structure followings NIMF. Very important is communications with the area, EOC and establish a command structure followings NIMF. Very important is the need to have a plan to communicate information to patients and families and other facilities.the need to have a plan to communicate information to patients and families and other facilities.

Slide 13. Other Contemplated LossesSlide 13. Other Contemplated Losses Food, water and utensil supplyFood, water and utensil supply Shortages of meds, disposables and DMEShortages of meds, disposables and DME

oo You should anticipate the most criticalYou should anticipate the most criticaloo Personal Hygiene / Sanitary SuppliesPersonal Hygiene / Sanitary Suppliesoo PPE neededPPE neededoo Food, meds and water w/evacueesFood, meds and water w/evacuees

Staff and Security lossesStaff and Security losses Handling waste: medical and otherHandling waste: medical and other Transportation and fuelTransportation and fuel

Identify reporting relationships in hospital's incident command structure and address staff support needs:Identify reporting relationships in hospital's incident command structure and address staff support needs:

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Housing, transportation, family support needs, etc.Housing, transportation, family support needs, etc. Protocol to identify various types of licensed independent practitioners Protocol to identify various types of licensed independent practitioners In advance, compile and maintain list of staff emergency contact information and an acknowledgement 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.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 In advance, establish and disseminate a call-in number for staff to obtain news and information from the

facility. facility. Establish which radio and television stations will broadcast information about the facility in the event theEstablish which radio and television stations will broadcast information about the facility in the event the

call-in number is not working.call-in number is not working. Identify how hospital will obtain and replenish medications, supplies food, and water and diesel fuel.Identify how hospital will obtain and replenish medications, supplies food, and water and diesel fuel. Identify how hospital will share such resources with area health care providersIdentify how hospital will share such resources with area health care providers How hospital will transport patients, their medications, supplies, clinical information, equipment and How hospital will transport patients, their medications, supplies, clinical information, equipment and

staff to alternate site .staff to alternate site . Clarify and identify roles of community security agencies for management of hazardous waste and Clarify and identify roles of community security agencies for management of hazardous waste and

materials and provisions for radioactive, biological and chemical isolation and decontamination. materials and provisions for radioactive, biological and chemical isolation and decontamination. Plan for control of personnel within the facility, and vehicles that access the facility during an emergencyPlan for control of personnel within the facility, and vehicles that access the facility during an emergency Designate individual to monitor emergency broadcasts/alerts via battery operated TV or radio.Designate individual to monitor emergency broadcasts/alerts via battery operated TV or radio. Consider what secondary communication methods are available: Cell phones, text, HamConsider what secondary communication methods are available: Cell phones, text, Ham Communication with vendors and essential service providers.Communication with vendors and essential service providers.

Internet – remember that even if you have power and internet connection, regulatory agencies may not.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 haveNotifying external authorities, employees, staff, patients and families that emergency response measures have been initiated is important.been initiated is important.

Communications with area health care organizations, regarding contact information, resources and assets thatCommunications with area health care organizations, regarding contact information, resources and assets that are available to be sharedare available to be shared11 | P a g e

Communications about patient names with area health care entities and third partiesCommunications about patient names with area health care entities and third parties

State Department of Health, Police, FBI, etc. must also be maintained.State Department of Health, Police, FBI, etc. must also be maintained.

But, what if you have failed to do some of the above, or didn’t do it to the satisfaction of somebody?But, what if you have failed to do some of the above, or didn’t do it to the satisfaction of somebody?

Slide 14. Don’t Be Bait for LiabilitySlide 14. Don’t Be Bait for Liability Federal IssuesFederal Issues Criminal IssuesCriminal Issues Administrative IssuesAdministrative Issues Civil Issues – Torts and ContractsCivil Issues – Torts and Contracts

Slide 15. Federal Law Causes of ActionSlide 15. Federal Law Causes of Action1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation Act, FD&C Act; HIPAA; EMTALA; 1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation Act, FD&C Act; HIPAA; EMTALA; FMLA; FLSA (wage and hour); OSHA; and FDA.FMLA; FLSA (wage and hour); OSHA; and FDA.

The Centers for Medicare and Medicaid Services (CMS,) the Inspector General of the United States 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 FraudDepartment 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 and Abuse Division (DOJ) and any other combination of alphabet-soup regulatory agencies at the federal and state level when they refuse to either pay you or threaten to investigate you for fraud. state level when they refuse to either pay you or threaten to investigate you for fraud.

Especially important in the aftermath will be CMS reimbursement under Medicare and Medicaid. Especially important in the aftermath will be CMS reimbursement under Medicare and Medicaid.

Slide 16. HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of 2009Slide 16. HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of 2009

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SlideSlide 17. 17. The “Golden Rule of Documentation:” If The “Golden Rule of Documentation:” If it ain’t wrote down, it didn’t happen! The way it is wrote 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! down is the way it happened regardless of the way it happened!

Slide 18. Confidentiality- Access to RecordsSlide 18. Confidentiality- Access to RecordsGeneral rule – (Privacy Rule) All patient information is strictly confidential. You must maintain patient 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 exist information confidential outside the necessary situation. However – exceptions in emergency situations exist under 45 CFR 164.512 – emergency personnel and law enforcement.under 45 CFR 164.512 – emergency personnel and law enforcement.

Slide 19. Imperatives for Protecting PHISlide 19. Imperatives for Protecting PHI

Improvements in health care and community health require responsible sharing of Improvements in health care and community health require responsible sharing of somesome PHI. In the absence of PHI. In the absence of privacy protections, patients and others may avoid some clinical, public health and research interventions to 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., their detriment. Individual privacy protections must balance with legitimate community uses of PHI, i.e., health research and public health.health research and public health.

Slide 20. Methods to Avoid Liability – DCH suggestionsSlide 20. Methods to Avoid Liability – DCH suggestions Have only one or two voices to media and the public, IE., thousands of callsHave only one or two voices to media and the public, IE., thousands of calls Train employees to route pts. to triage regardless of ingressTrain employees to route pts. to triage regardless of ingress Avoid inappropriate behaviorsAvoid inappropriate behaviors Participate in QA/QI and Con-Ed programsParticipate in QA/QI and Con-Ed programs Know and follow policies , protocols, procedures, laws and regulationsKnow and follow policies , protocols, procedures, laws and regulations Strictly adhere to training protocolsStrictly adhere to training protocols Strictly follow instructions of medical direction and superiorsStrictly follow instructions of medical direction and superiors Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central

clearinghouse. Follow up pts later with your EMR.clearinghouse. Follow up pts later with your EMR.oo It only IDs pt. and tells status. No PHI to inadvertently releaseIt only IDs pt. and tells status. No PHI to inadvertently release

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oo Hospital spokes person or receptions on phone have access to this system and can locate pts. For 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.press and family members w/o giving PHI.

oo Technically, even the name of the patients is PHI, but that’s minor.Technically, even the name of the patients is PHI, but that’s minor.oo Have only one or two voices to media and the public, IE., thousands of callsHave only one or two voices to media and the public, IE., thousands of calls

Document, document, documentDocument, document, document

Slide 21. Disaster Applicability - DHHS Says:Slide 21. Disaster Applicability - DHHS Says:Responding agencies will need to get PHI to respond to emergencies, therefore, a covered entity can disclose 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.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 Attempt to have prepared systems that minimize non-emergency disclosures. See 45 CFR 164.512(b) public health activitieshealth activities

Slide 22. EMTALA - Slide 22. EMTALA - Section 1867, Social Security ActSection 1867, Social Security Act Must triage and stabilize then treat or transferMust triage and stabilize then treat or transfer What if you are in a disaster?What if you are in a disaster?

oo DCH found the Statewide Trauma System to be very helpfulDCH found the Statewide Trauma System to be very helpfuloo Plan to set up emergency triage sub-stationsPlan to set up emergency triage sub-stationsoo Have transfer agreements – where and howHave transfer agreements – where and how

Ambulances – is there prohibitive (exclusive) ordinance?Ambulances – is there prohibitive (exclusive) ordinance? ADPH bus kitsADPH bus kits

If in a true disaster, it is unlikely HHS will pursue a provider in absence of obvious fraudIf in a true disaster, it is unlikely HHS will pursue a provider in absence of obvious fraudLet’s first define EMTALA. What’s an Emergency? The definition provided under the statute is:Let’s first define EMTALA. What’s an Emergency? The definition provided under the statute is:"A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such"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 --that the absence of immediate medical attention could reasonably be expected to result in --

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placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her 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 unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part, orbodily organ or part, or

"With respect to a pregnant woman who is having contractions --"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, orthat there is inadequate time to effect a safe transfer to another hospital before delivery, orthat the transfer may pose a threat to the health or safety of the woman or her unborn child."that the transfer may pose a threat to the health or safety of the woman or her unborn child."

As to whether turning someone away constitutes an EMTALA violation, health care providers concerned As to whether turning someone away constitutes an EMTALA violation, health care providers concerned about EMTALA compliance and litigation exposure will naturally ask "Is this a violation?", and they will wantabout EMTALA compliance and litigation exposure will naturally ask "Is this a violation?", and they will want a yes or no answer. The responsible lawyer cannot, in many cases, answer with a yes or a no. A more 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. 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 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: 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 What are the chances that somebody going to sue based on this event? If he does, what are the chances that he will win?that he will win?

If CMS is called to investigate, what are the chances that it will cite the hospital for a violation?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 EMTALA compliance is, at base, a risk management endeavor. Thus the questions are best focused on the chances of an adverse finding or result, rather than on the issue of whether a given event "is a violation". Aschances of an adverse finding or result, rather than on the issue of whether a given event "is a violation". As is the case in other areas of the law, the issue is not so much what the law says as whether someone (a 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 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.questions will depend on the particular factual situation and the competing interests that are at work.

Slide 23. Where does EMTALA Apply? Slide 23. Where does EMTALA Apply? The 2003 regulation revisions provide: The 2003 regulation revisions provide:

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A person who presents anywhere on the hospital campus and requests emergency services, or who A person who presents anywhere on the hospital campus and requests emergency services, or who would appear to a reasonably prudent person to be in need of medical attention, must be handled underwould appear to a reasonably prudent person to be in need of medical attention, must be handled under EMTALA. Other presentations outside the emergency room do not invoke EMTALA. EMTALA. Other presentations outside the emergency room do not invoke EMTALA.

The 250-yard zone will continue to apply when defining the "hospital campus". Now, however, that The 250-yard zone will continue to apply when defining the "hospital campus". Now, however, that sphere does not include non-medical businesses (shops and restaurants located close to the hospital), sphere does not include non-medical businesses (shops and restaurants located close to the hospital), nor does it include physicians' offices or other medical entities that have a separate Medicare identity. nor does it include physicians' offices or other medical entities that have a separate Medicare identity.

EMTALA does not apply to any off-campus facility, regardless of its provider-based status, unless it EMTALA does not apply to any off-campus facility, regardless of its provider-based status, unless it independently qualifies as a dedicated emergency department. independently qualifies as a dedicated emergency department.

Slide 24. Evacuation Plan – Have One - And Stick to ItSlide 24. Evacuation Plan – Have One - And Stick to It Does it violate EMTALA?Does it violate EMTALA? Plan w/ other facilities to take pts.Plan w/ other facilities to take pts. Plan w/city, county and schools to use vehicles and (importantly) driversPlan w/city, county and schools to use vehicles and (importantly) drivers

oo N.O. didn’t evacuate in part, because though they had buses, they didn’t have drivers who had N.O. didn’t evacuate in part, because though they had buses, they didn’t have drivers who had deserted and the mayor was afraid of the consequences of executing the plan.deserted and the mayor was afraid of the consequences of executing the plan.

Tenet-Memorial Hospital (N.O) settled suit involving their evacuation plan, especially, changing in mid-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 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 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 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 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 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. 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 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. what the jury says it is.

Slide 25. OSHA in a Disaster – Plan!Slide 25. OSHA in a Disaster – Plan!16 | P a g e

Have pre-emergency drills implementing plan, using plan & ICS SystemHave pre-emergency drills implementing plan, using plan & ICS System Establish lines of authority and communication between incident site and hospital personnel. Establish lines of authority and communication between incident site and hospital personnel. Designate disaster team including ED MDs, nurses, aides and supp. pers. w/PPEDesignate disaster team including ED MDs, nurses, aides and supp. pers. w/PPE Designate alternate sites Designate alternate sites Post-emergency critique of the hospital's emergency response – OSHA Pub. 3152 (1997)Post-emergency critique of the hospital's emergency response – OSHA Pub. 3152 (1997)

Slide 26. Fair Labor Standards ActSlide 26. Fair Labor Standards Act Plan should include use of reserves and time off where possiblePlan should include use of reserves and time off where possible Even in a disaster, you need to document the hours non-exempt personnel are working.Even in a disaster, you need to document the hours non-exempt personnel are working. Time off may be given later orTime off may be given later or Overtime pay required for non-exempt employeesOvertime pay required for non-exempt employees If you have a Gov.’s Proclamation, a Stafford Act declaration and are executing your approved disaster If you have a Gov.’s Proclamation, a Stafford Act declaration and are executing your approved disaster

plan, it is plan, it is possiblepossible that you that you may may be designated a state entity and eligible for 80% reimbursementbe designated a state entity and eligible for 80% reimbursement

Slide 27. Pure Food, Drug & Cosmetic ActSlide 27. Pure Food, Drug & Cosmetic ActBe careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or pharmacist. Plan a workBe 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 bearound of this. Work with city to have pre-established aid stations w/pharmacist coverage. Pharmacists can be obtained and dispatched through ADPH volunteer network.obtained and dispatched through ADPH volunteer network.

Slide 28. Licensure Issues – Bed CapacitySlide 28. Licensure Issues – Bed CapacityCode of Ala.1975Code of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximum bed capacity. This may 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. be exceeded in emergency by contacting ADPH Bureau of Health Provider Standards for a temporary waiver. This probably can be done through AIMS and this will This probably can be done through AIMS and this will notnot be your biggest problem. be your biggest problem.

Slide 29. The Joint Commission (TJC)Slide 29. The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements related to emergency managementOn Nov. 24, 2008, TJC imposed requirements related to emergency management17 | P a g e

The hospital has Emergency Operations Plan. The hospital engages in planning activities prior to developing itsThe 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, written EOP. The hospital prepares for how it will: communicate, manage resources, provide security, staff, and grant privileges to other practitioners during emergencies. TJC leave it up to you to draft the plan, IE., and grant privileges to other practitioners during emergencies. TJC leave it up to you to draft the plan, IE., there is no “formula” plan.there is no “formula” plan.

Slide 30. Criminal ComplaintsSlide 30. Criminal Complaints TrespassTrespass Assaults and BatteriesAssaults and Batteries Theft of property Theft of property ConversionConversion Offenses involving sexual misconductOffenses involving sexual misconduct

Slide 31. Civil Liability, Lawsuits, Defenses and Immunities Slide 31. Civil Liability, Lawsuits, Defenses and Immunities

Slide 32. TortsSlide 32. Torts An actionable wrong under the lawAn actionable wrong under the law

oo Negligent tortsNegligent tortsoo Intentional tortsIntentional tortsoo Strict liability -Probably not a concern hereStrict liability -Probably not a concern here

Recoverable in a civil action against youRecoverable in a civil action against you Filed in Circuit CourtFiled in Circuit Court The plaintiff wants money damagesThe plaintiff wants money damages

Slide 33. Types of TortsSlide 33. Types of Torts Malpractice and professional liabilityMalpractice and professional liability

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oo General tort liability – negligence for an act or omission for economic loss and non-economic lossGeneral tort liability – negligence for an act or omission for economic loss and non-economic loss Gross neg., wanton misconduct, bad faithGross neg., wanton misconduct, bad faith Vicarious liability and Respondeat superiorVicarious liability and Respondeat superior Negligent recruitment/training/supervisionNegligent recruitment/training/supervision Premises Liability (slip and fall, glass in beans)Premises Liability (slip and fall, glass in beans)

Slide 34. NegligenceSlide 34. NegligenceThe failure to act or perform in a particular situation as any other reasonable prudent practitioner with similar The failure to act or perform in a particular situation as any other reasonable prudent practitioner with similar training would act under the same or similar circumstances.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 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 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 care under the circumstances, or to act as a reasonable person would under the same circumstances. The operative word is “reasonable.” operative word is “reasonable.”

The standard is essentially the same for professionals. The difference is that the “reasonable person” that a The standard is essentially the same for professionals. The difference is that the “reasonable person” that a professional is compared to is another professional with similar background and expertise.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 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. 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 come down to a duty to use The elements of a negligence claim are also a matter of state common law. They come down to a duty to use due care under the circumstances, breach of that duty, and resulting damages caused by the breach.due care under the circumstances, breach of that duty, and resulting damages caused by the breach.The universe of activities that can expose a program to a negligence claim are as diverse as are facilities and The universe of activities that can expose a program to a negligence claim are as diverse as are facilities and are limited only by the imagination of very creative plaintiff’s attorneys. are limited only by the imagination of very creative plaintiff’s attorneys.

Two over-looked but important sources of liability exposure for a facility would be: Two over-looked but important sources of liability exposure for a facility would be: 19 | P a g e

•• The operation of motor vehicles to transport people or supplies The operation of motor vehicles to transport people or supplies •• The hospital’s inadequate internal procedures for selecting, assigning and monitoring employees. The hospital’s inadequate internal procedures for selecting, assigning and monitoring employees.

The consequences of negligent acts that result in damage will generally be injury or property damage. 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. Compensatory damages are the remedy normally awarded by a court to the injured party.

Slide 35. Slide 35. Negligent tortsNegligent torts arise from the failure to use reasonable care under the circumstances, which are the arise from the failure to use reasonable care under the circumstances, which are the proximate cause of recoverable damages. The “reasonable man” test” is applied. Bad results aren’t enough . proximate cause of recoverable damages. The “reasonable man” test” is applied. Bad results aren’t enough .

Professional liability – failure to use the degree of skill and care expected of a person in the profession.Professional liability – failure to use the degree of skill and care expected of a person in the profession.

Slide 36. Proving NegligenceSlide 36. Proving Negligence “Intent to cause harm” is not required“Intent to cause harm” is not required Four things are required to be provedFour things are required to be proved

oo DutyDutyoo Breach of the dutyBreach of the dutyoo Injury or damageInjury or damageoo Proximate causeProximate cause

Slide 37.Slide 37. Punitive Damages or “ Punitive Damages or “Punnies” are award for:Punnies” are award for: Gross negligence - reckless disregard of the consequences to the safety or property of another or willful Gross negligence - reckless disregard of the consequences to the safety or property of another or willful

acts - intentional, conscious and directed toward achieving a purpose 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 Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people

or property or property Reckless behavior–similar to gross negligenceReckless behavior–similar to gross negligence

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Punitive damages are awarded for wrongful acts that are so severe that the law imposes additional civil 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 damages as a deterrent. Punitive damages are awarded in addition to compensatory damages, and are not related to the injured party’s actual losses. Punnies may be awarded when it fails “O my God” test. related to the injured party’s actual losses. Punnies may be awarded when it fails “O my God” test.

Slide 38. Exceeding the Scope of PracticeSlide 38. Exceeding the Scope of PracticeAnother important liability concept for professional lies in the professional’s is scope of practice. One general Another important liability concept for professional lies in the 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 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 is permitted to perform under a state licensing statute, further defined by the professional’s experience and training.”and training.”

So there are two sets of constraints on any professional’s scope of practice: the licensing statute and the So there are two sets of constraints on any professional’s scope of practice: the licensing statute and the professional’s own demonstrated abilities. professional’s own demonstrated abilities.

Slide 39. Standard of CareSlide 39. Standard of CareEstablishing – can be set by statute or by governmental rule or by the courtEstablishing – can be set by statute or by governmental rule or by the courtMeasures of determining the standardMeasures of determining the standard

Behavior is compared with others with similar training and experienceBehavior is compared with others with similar training and experience Compared w/ locally accepted standardsCompared w/ locally accepted standards Compared to statutes or administrative rulesCompared to statutes or administrative rules Compared with professional standards published nationallyCompared with professional standards published nationally

I have a plan to alter the std. in emergency. It involves the Governor’s proclamation of a state of disaster and I have a plan to alter the std. in emergency. It involves the Governor’s proclamation of a state of disaster and the adoption of your hospital disaster plan.the adoption of your hospital disaster plan.

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Slide 40. Breach of the Standard of CareSlide 40. Breach of the Standard of Careliability issues center around whether the hospital and its professionals have maintained the “standard of liability issues center around whether the hospital and its professionals have maintained the “standard of care.” See care.” See Code of Ala.1975Code of Ala.1975 §6-5-548 . See also §6-5-548 . See also Humana Medical Corporation v. TraffanstedtHumana Medical Corporation v. Traffanstedt, 597 So., 597 So. 2d 667 2d 667 (Ala. 1992(Ala. 1992

Slide 41. Malpractice:Slide 41. Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with the professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient. result of injury, loss, or damage to the patient.

Med-MalMed-Mal is subject to a special statute. See is subject to a special statute. See Code of Ala. 1975Code of Ala. 1975 §§ 6-5-480, §§ 6-5-480, et seq. et seq. and and Code of Ala. 1975Code of Ala. 1975 §§ §§ 6-6-2-38 and 6-5-410. Hospitals are covered as well by the med-mal statute.2-38 and 6-5-410. Hospitals are covered as well by the med-mal statute.

Slide 42 Corporate or Group LiabilitySlide 42 Corporate or Group Liability Corporate NegligenceCorporate Negligence Vicarious liability/Respondeat superiorVicarious liability/Respondeat superior Negligent recruitment/training /supervisionNegligent recruitment/training /supervision Premises liabilityPremises liability

Slide 43. Premises Liability–“Shelterees”Slide 43. Premises Liability–“Shelterees” Plan for “sheltrees” – uninjured persons from neighborhood or brought by LEPlan for “sheltrees” – uninjured persons from neighborhood or brought by LE Some unattended pediatrics, some geriatric w/attendant & inherent problemsSome unattended pediatrics, some geriatric w/attendant & inherent problems Plan for minimum of 8 hours until ARC can open shelters, then plan for transport therePlan for minimum of 8 hours until ARC can open shelters, then plan for transport there Plan for sheteree animals , bites & ETC.Plan for sheteree animals , bites & ETC. Plan to prevent thefts – get supplemental lights and securityPlan to prevent thefts – get supplemental lights and security

Slide 44. Negligent Hiring, Training, Supervision or RetentionSlide 44. Negligent Hiring, Training, Supervision or Retention

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An employer can also be responsible for the acts of employees on grounds of negligent hiring, supervision or 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 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 employment process. It basically holds the employer responsible for negligently placing an Employee in a position to do harm to others.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 Direct liability of an employer for acts or omissions of employees based on the employer’s failure to use reasonable care in: reasonable care in:

Selecting , supervising and training workers, andSelecting , supervising and training workers, and Terminating their services when necessary. “No good deed goes unpunished.” The “slack” you give your Terminating their services when necessary. “No good deed goes unpunished.” The “slack” you give your

employee may be the rope that hangs you.employee may be the rope that hangs you.

Slide 45. Respondeat SuperiorSlide 45. Respondeat SuperiorThe master is responsible for the acts or omissions of his/her servant committed “within the scope and line of The master is responsible for the acts or omissions of his/her servant committed “within the scope and line of duty” when not on a “frolic and detour.” The hospital is responsible for the acts of personnel in the line of duty” when not on a “frolic and detour.” The hospital is responsible for the acts of personnel in the line of duty, though not for “independent contractors.” Doctor is responsible for the nurse under his/her control.duty, though not for “independent contractors.” Doctor is responsible for the nurse under his/her control.

Slide 46. Failure to Plan - Slide 46. Failure to Plan - Three possibilities for negligence liability:Three possibilities for negligence liability: Absence of a plan, Inadequate plan, Failure to follow plan. On July 20, 2011, a Louisiana judge gave Absence of a plan, Inadequate plan, Failure to follow plan. On July 20, 2011, a Louisiana judge gave

preliminary approval on a 25 million dollar class-action lawsuit settlement agreed to by Tenet Healthcarepreliminary approval on a 25 million dollar class-action lawsuit settlement agreed to by Tenet Healthcare Corporation and associated plaintiffs.Corporation and associated plaintiffs. Basically it boiled down to the failure of a corporation to provide Basically it boiled down to the failure of a corporation to provide adequate emergency preparedness for those for whom it was responsible. The number of class adequate emergency preparedness for those for whom it was responsible. The number of class members is unknown, but there were 187 patients and about 800 visitors in the hospital when the members is unknown, but there were 187 patients and about 800 visitors in the hospital when the Katrina hit. The bodies of 45 patients were found at Memorial after the dust settled. Katrina hit. The bodies of 45 patients were found at Memorial after the dust settled.

Some doctors subsequently acknowledged that they had hastened the deaths of patients by injecting Some doctors subsequently acknowledged that they had hastened the deaths of patients by injecting them with drugs. No criminal charges were brought and the medical staff said they had done their best them with drugs. No criminal charges were brought and the medical staff said they had done their best under extraordinary conditions.under extraordinary conditions.

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A commentary on the case published in July of 2011 in the Journal of the American Medical Association A commentary on the case published in July of 2011 in the Journal of the American Medical Association said that health care entities may increasingly face legal action for deficiencies in emergency said that health care entities may increasingly face legal action for deficiencies in emergency preparedness. It called for clearer legal standards for hospitals "so health care entities are not compelledpreparedness. It called for clearer legal standards for hospitals "so health care entities are not compelled to prepare endlessly for every contingency."to prepare endlessly for every contingency."

Reasonable care: probability of an event, gravity of potential injury, and burden in adequate precaution 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 –: probability of an event, gravity of potential injury, and burden in adequate precaution – See Lacoste v. Lacoste v. Pendleton Methodist HospitalPendleton Methodist Hospital. Supreme Court of Louisiana. 2006. Supreme Court of Louisiana. 2006

Slide 47. Slide 47. Punitive Damages – wanton and willful misconductPunitive Damages – wanton and willful misconductFailure to Plan: I would submit that the standard is already set and duty to plan is established.Failure to Plan: I would submit that the standard is already set and duty to plan is established.Planning required by Joint CommissionPlanning required by Joint Commission

Planning required by NIMSPlanning required by NIMS Planning encouraged and facilitated by ADPHPlanning encouraged and facilitated by ADPH Plan a part of the State EOP and invoked by order of the Governor in an event.Plan a part of the State EOP and invoked by order of the Governor in an event.

Slide 48. Slide 48. Judgment Proofing and DefensesJudgment Proofing and Defenses

There is always some who will want to sue you, and always a lawyer who will take the case. Hide and watch There is always some who will want to sue you, and always a lawyer who will take the case. Hide and watch the suits in New York and New Jersey after the storm. There’s no such thing as being “law-suit proof,” rather, the suits in New York and New Jersey after the storm. There’s no such thing as being “law-suit proof,” rather, we speak in terms of “judgment proof.”we speak in terms of “judgment proof.”

Slide 49. Two Very Important Ques.Slide 49. Two Very Important Ques. Can you make the hard calls?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 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.out beforehand with advice from insurance agent and lawyer.

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Slide 50. Making Hard Calls – PrinciplesSlide 50. Making Hard Calls – Principles

"To Tell the Truth, the Whole truth and nothing but the Truth""To Tell the Truth, the Whole truth and nothing but the Truth" -We must first study and learn the absolute -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 ethicaltruths 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 decisions without fear of making a mistake, (not without making mistakes, but without fearfear of making of making mistakes) and without fear of the consequences because, if we have followed the truth, mistakes) and without fear of the consequences because, if we have followed the truth, wewe are not are not responsible for the consequences, the responsible for the consequences, the truthtruth is responsible for the consequences. It is when we do not follow is responsible for the consequences. It is when we do not follow the truth, that we transfer the responsibility for failure to ourselves. 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 “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.be applied. It is your duty to know these “truths..” before you start planning.

•• The "No Delta Principle"- The "No Delta Principle"- Ethical principles do not change no matter the situation, only the application ofEthical principles do not change no matter the situation, only the application of them. Moral Relativism is a myth.them. Moral Relativism is a myth.

•• ““Free at last, free at last!” Free at last, free at last!” You will know the truth and the truth shall make you free. You will know the truth and the truth shall make you free. •• ““The Principle of the Plumbline"The Principle of the Plumbline" - In the storm, we make our decisions by applying the plumb line and - In the storm, we make our decisions by applying the plumb line and

level of the truth. level of the truth. ••

"We'll Sing in the Sunshine"-"We'll Sing in the Sunshine"- To the extent practicable, we pre-plan disaster decisions in the sunshine. To the extent practicable, we pre-plan disaster decisions in the sunshine.

““Casper the Friendly Ghost,”Casper the Friendly Ghost,” – Transparency and accountability are twins. – Transparency and accountability are twins. “You’re a pane“You’re a pane” -” -Transparency - To the extent possible, decisions should be made not only in the sunshine Transparency - To the extent possible, decisions should be made not only in the sunshine temporally, by also visually and influentially as well. temporally, by also visually and influentially as well.

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•• ““No Accountability Vacuum.”No Accountability Vacuum.” No matter how well intentioned we start out, if there is an accountability No matter how well intentioned we start out, if there is an accountability vacuum, we are strongly tempted to cut corners.vacuum, we are strongly tempted to cut corners.

•• "It's Not About Me.""It's Not About Me." We need to adopt the idea that life is not about me. That frees us from worrying 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.about ourselves and frees us to make these plumb and square decisions.

““The Nike Principle The Nike Principle – We are all familiar with Nike’s famous slogan, “– We are all familiar with Nike’s famous slogan, “Just Do It.” Just do it NOW.Just Do It.” Just do it NOW. Resist the Resist the urge to procrastinate. urge to procrastinate.

•• Focus, please Focus, please -- The danger with “just doing it, is that one can become like a charging rhinoceros. The danger with “just doing it, is that one can become like a charging rhinoceros. •• Truth or Consequences Truth or Consequences Everything we do has consequences. We must be aware of that fact and must be Everything we do has consequences. We must be aware of that fact and must be

aware of the “Law of Unintended Consequences.” aware of the “Law of Unintended Consequences.” [[However, perhaps the greater danger for the However, perhaps the greater danger for the government planner is not that he or she doesn’t think through the possible consequences, but rather government planner is not that he or she doesn’t think through the possible consequences, but rather that he so that he so over thinksover thinks the consequences that he is paralyzed in the decision-making process. Hence, back the consequences that he is paralyzed in the decision-making process. Hence, back to the main bullet – to the main bullet – Just Do It!Just Do It!

Slide 51. Planning -“Bryant’s Rule” - Patton’s CorollarySlide 51. Planning -“Bryant’s Rule” - Patton’s CorollaryHave a Plan, work your Plan, plan for the Unexpected. Plans must be simple, flexible and scalable and be madeHave a Plan, work your Plan, plan for the Unexpected. Plans must be simple, flexible and scalable and be made by the people who are going to execute them, not “pointy headed intellectuals,” as Gov. Wallace would say.by the people who are going to execute them, not “pointy headed intellectuals,” as Gov. Wallace would say.

Slide 52. Plan “Beyond Your Wildest Dreams”Slide 52. Plan “Beyond Your Wildest Dreams” Plan must be beyond your “wildest dreams.” - Janet Teer, GC, DCH SystemPlan must be beyond your “wildest dreams.” - Janet Teer, GC, DCH System Expand your concept of “disaster,” think not 10-100 pts in the ED but 800-1500 anywhere in the facilityExpand your concept of “disaster,” think not 10-100 pts in the ED but 800-1500 anywhere in the facility Get a team on the planning process w/deadlinesGet a team on the planning process w/deadlines Plan in accord with TJC, reviewed by and filed with local EMA and ADPHPlan in accord with TJC, reviewed by and filed with local EMA and ADPH

Slide 53. Triage Planning - Slide 53. Triage Planning - Whatever method is decided upon, may I offer several points: Whatever method is decided upon, may I offer several points:

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It needs to be decided It needs to be decided nownow. Have a plan . Have a plan now. now. It is a moral failure to put off such a momentous decision until It is a moral failure to put off such a momentous decision until there is no time to reach a there is no time to reach a good good decision. University of Pittsburgh’s Professor Tabery urges the use of a decision. University of Pittsburgh’s Professor Tabery urges the use of a Triage Triage Review BoardReview Board including an administrator, physicians, nurses, clergy, ethicists, and community persons at large 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 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, to “engage the public” at pre, during and post stages of the pandemic or disaster. At this pointing the debate, the method the method to be usedto be used, if not , if not agreed uponagreed upon (and that is entirely possible that it will not be agreed upon,) it (and that is entirely possible that it will not be agreed upon,) it should at least be formulated with wide input.should at least be formulated with wide input.

Professor states that a good plan needs a Triage Officer – the initial person making these life and death Professor 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. 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 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 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.superiors and the whole process looked at on an on-going basis by the Triage Review Board.

Slide 54. Modern Disaster TriageSlide 54. Modern Disaster TriageProfessor Tabery states of the ethics of triage in disaster situations that there has been or is in the process of Professor 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 becoming switch from standard medical ethics with the primary focus on individual autonomyindividual autonomy to an ethics of to an ethics of public health with a primary focus on the public health with a primary focus on the health of the communityhealth of the community, with the overarching goal being to , with the overarching goal being to minimize morbidity and mortality during the pandemic.minimize morbidity and mortality during the pandemic. Professor Tabery then takes the Bentham/Kant debateProfessor Tabery then takes the Bentham/Kant debate into the 21into the 21stst Century in looking at models for triage: Century in looking at models for triage: Utilitarian v. Egalitarian.Utilitarian v. Egalitarian. In other words, given scarce In other words, given scarce resources, do the workers address the needs from the basis of for whom they can do the resources, do the workers address the needs from the basis of for whom they can do the most goodmost good, or to , or to those who are in those who are in greatest needgreatest need? ?

Slide 55. Specific Template for Disaster Planning-Vent. Triage ESF 8Slide 55. Specific Template for Disaster Planning-Vent. Triage ESF 8

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ADPH develops a template for disaster planning and resource allocation, the Ventilator Triage. We 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 recommend you adopt it as your plan. It may give state agency immunity. See http://www.adph.org/CEP/assets/VENTTRIAGE.pdfhttp://www.adph.org/CEP/assets/VENTTRIAGE.pdf

Slide 56. Statute of LimitationsSlide 56. Statute of LimitationsSet time period for injured party to file lawsuitSet time period for injured party to file lawsuitTortsTorts -Generally 2 years -Generally 2 years

Includes wrongful death, PI, and A & BIncludes wrongful death, PI, and A & BTrespass – 6 yearsTrespass – 6 years

ContractsContracts – Generally 6 years – Generally 6 yearsCould include personal injury under contractCould include personal injury under contractSee more laterSee more later

Slide 57. S/L – Slide 57. S/L – Med Mal more or less 4 years.Med Mal more or less 4 years. All actions against health care providers must be commenced 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 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 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 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 §reasonably lead to such discovery, whichever is earlier. Ala. Code § 6-5-482 (1993). 6-5-482 (1993).

Although this statute of limitations is subject to tolling for minority or disability, in no event may an action be 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 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. the time of the act or omission accrues has until his eighth birthday to commence an action. IdId. The . The constitutionality of the statute has been upheld. constitutionality of the statute has been upheld. Barlow v. Humana, Inc.Barlow v. Humana, Inc., 495 So., 495 So. 2d 1048 (Ala. 1986). A 2d 1048 (Ala. 1986). A wrongful death action must be brought within two years after the decedent's death. Ala. Code §§wrongful death action must be brought within two years after the decedent's death. Ala. Code §§ 6-2-38 and 6-2-38 and 6-5-410 (1993). 6-5-410 (1993).

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This "statute of limitations" is not subject to any tolling provisions and applies in wrongful death cases even if This "statute of limitations" is not subject to any tolling provisions and applies in wrongful death cases even if the cause of death is medical malpractice. the cause of death is medical malpractice. Cofer v. EnsorCofer v. Ensor, 473 So., 473 So. 2d 984 (Ala. 1985); 2d 984 (Ala. 1985); McMickens v. WaldorpMcMickens v. Waldorp, , 406 So.406 So. 2d 867 (Ala. 1981)2d 867 (Ala. 1981)

Expert TestimonyExpert Testimony - "In medical malpractice cases, the plaintiff must prove negligence through the use of - "In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor's alleged lack of due care or skill requires only expert testimony, unless an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience.“ common knowledge or experience.“ Monk v. VeselyMonk v. Vesely, 525 So., 525 So. 2d 1364, 1365 (Ala. 1988). The exception applies 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 only to such situations as a foreign object left after surgery or an injury remote from the part of the body being treated. being treated. Dews v. Mobile Infirmary Ass'nDews v. Mobile Infirmary Ass'n, 659 So., 659 So. 2d 61 (Ala. 1995). A health care provider may testify as 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 carean 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 "similarly situated," as defined by statute. Ala. Code §only if he or she is "similarly situated," as defined by statute. Ala. Code § 6-5-548 (Supp. 1997). 6-5-548 (Supp. 1997).

This means, in part, that expert witnesses against a physician accused of negligence must be certified in the 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. same specialty and must have practiced within the previous year. Id.Id.; ; Malcolm v. KingMalcolm v. King, 686 So., 686 So. 2d 231 2d 231 (Ala.1996).(Ala.1996).

Slide 58. Damage Caps for HCAs - Slide 58. Damage Caps for HCAs - Code of Ala.1975Code of Ala.1975 § 22-21-318(2) caps damages against a “health care § 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 purely county or authority” at $100,000. This does not apply to a for-profit hospital nor does it apply to a purely county or municipal owned hospital.municipal owned hospital.

Slide 59. Malpractice InsuranceSlide 59. Malpractice Insurance Covers any [costs & damages the physician/ employer/ employee must pay if (s)he sued for malpractice Covers any [costs & damages the physician/ employer/ employee must pay if (s)he sued for malpractice

and loses [to policy limits]and loses [to policy limits] All licensed/ certified H/C professionals should carry malpractice insurance or have hospital providedAll licensed/ certified H/C professionals should carry malpractice insurance or have hospital provided Can be an expensive type of insurance for some disciplines Can be an expensive type of insurance for some disciplines MDs can be thousands or even tens of thousandsMDs can be thousands or even tens of thousands

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EMTs around $200 per year through NAEMTEMTs around $200 per year through NAEMT Nurses around $200 - $400 depending on coverageNurses around $200 - $400 depending on coverage Hospital carries general liability and D & OHospital carries general liability and D & O

Slide 60. Types of Med-Mal InsuranceSlide 60. Types of Med-Mal InsuranceClaims-made insurance -Claims-made insurance - covers insured party for claims made only during the time period policy was in effect covers insured party for claims made only during the time period policy was in effectOccurrence insurance -Occurrence insurance - covers the insured party for all injuries and incidents that occurred while policy was in covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made effect regardless of when claim is made Limits Limits – Usually $1-3 Million including defense costs– Usually $1-3 Million including defense costs

Slide 61. Hospital InsuranceSlide 61. Hospital InsuranceIn addition to med-mal, you should cover premises liability – Agree w/ co. & know what is (in)(ex)cluded. Ask In addition to med-mal, you should cover premises liability – Agree w/ co. & know what is (in)(ex)cluded. Ask questions. We are in a “soft market,” therefore you may be able to negotiate additional coverages w/ Pro questions. We are in a “soft market,” therefore you may be able to negotiate additional coverages w/ Pro Assurance, Coastal or McNeary. Consider coverage for HHS/CMS civil penalties; Have high $ “umbrella” gen’l Assurance, Coastal or McNeary. Consider coverage for HHS/CMS civil penalties; Have high $ “umbrella” gen’l liability coverage. This may have to be re-insured.liability coverage. This may have to be re-insured.

Slide 62. Goals -Altered Standards of CareSlide 62. Goals -Altered Standards of CareThe New York State Departments of Agriculture and Environmental The New York State Departments of Agriculture and Environmental Conservation estimate that in a “moderate” pandemic influenza event, patients will most likely utilize:Conservation estimate that in a “moderate” pandemic influenza event, patients will most likely utilize:• 63% of hospital bed capacity;• 63% of hospital bed capacity;• 125% of intensive care capacity; and • 125% of intensive care capacity; and • 65% of hospital ventilator capacity.• 65% of hospital ventilator capacity.

Thus, in a discussion of the ethical treatment of patients, we would be in a scarce resource situation; this leadsThus, 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 to a discussion of the ethical and legal basis for Altered Standards of CareAltered Standards of Care. When is it permissible from an . 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 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?” in both the medical and legal professions as the standard of care?” 30 | P a g e

When it permissible from an ethical and legal standpoint to provide less than the care normally pr traditionallyWhen 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”?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 EmergencyHealthcare 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 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, ribbon working group. In their report, they state the following finding, inter aliainter alia..

•• The goal of an organized and coordinated response to a mass casualty event should be to maximize the The goal of an organized and coordinated response to a mass casualty event should be to maximize the number of lives saved. number of lives saved.

•• Changes in the usual standards of health and medical care will be necessary to allocate scarce resources 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. 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 The basis for allocating health and medical resources in a mass casualty event must be fair and clinically sound. sound.

•• The process for making these decisions should be transparent and judged by the public to be fair. 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.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 Staff concerns must be addressed pre-event

Slide 63. Focus Change - Altered StandardsSlide 63. Focus Change - Altered Standards Critical : Critical : Focus Changes from doing to best for each patient to maximizing the most lives saved. The Focus Changes from doing to best for each patient to maximizing the most lives saved. The

systemsystem becomes the pt. becomes the pt. Affect current patients already in hospital for other, non-related illnesses and injuriesAffect current patients already in hospital for other, non-related illnesses and injuries The usual scope of practice changesThe usual scope of practice changes Equipment, meds and supplies must or may be rationedEquipment, meds and supplies must or may be rationed Record-keeping changes but still must exist in some form.Record-keeping changes but still must exist in some form.

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Slide 64. Emergency Management -Under Slide 64. Emergency Management -Under Code of Ala.1975,Code of Ala.1975, § 31-9-2: § 31-9-2:Governor proclaims an “emergency” defined as: Governor proclaims an “emergency” defined as: Enemy attack, sabotage Enemy attack, sabotage or “other hostile action;”or “other hostile action;” Fire, flood and “other natural causes” including B/T incidents, pandemics or naturally occurring events like Fire, flood and “other natural causes” including B/T incidents, pandemics or naturally occurring events like

hurricanes and tornadoes. hurricanes and tornadoes. Amendments add “Public Health Emergency”, “Public health emergency,” is defined as: Amendments add “Public Health Emergency”, “Public health emergency,” is defined as:

“an occurrence or imminent threat of an illness or health condition, caused by Bioterrorism, epidemic or “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 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 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 illness or health condition includes, but is not limited to, an illness or health condition resulting from a national disaster.”national disaster.”

Slide 65. Governor Proclaimed EmergencySlide 65. Governor Proclaimed EmergencyThis would activate the State Emergency Operations Plan (EOP). Specifically activation of Tab A (Pandemic 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 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 Public Health has developed different operational plans to deal with mass distribution of countermeasures and pandemic influenza. The two plans are the and pandemic influenza. The two plans are the Strategic National Stockpile Plan (SNS Plan) and the Pandemic Strategic National Stockpile Plan (SNS Plan) and the Pandemic Influenza Operational Plan (PI Plan).Influenza Operational Plan (PI Plan). These plans can be utilized together or separately. They complement 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 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 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.incidents as required by following the same process and protocol as for any other disaster impacting the state.

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A unified command will be established between agencies such as the AEMA, ADPH, Homeland Security, Public A unified command will be established between agencies such as the AEMA, ADPH, Homeland Security, Public Safety, Department of Ag. & Industries and/or other agencies as the situation requires. Safety, Department of Ag. & Industries and/or other agencies as the situation requires. ADPH is responsible ADPH is responsible for oversight of Emergency Support Function (ESF) #8 —Public Health and Medical Services.for oversight of Emergency Support Function (ESF) #8 —Public Health and Medical Services.

Slide 66. Governor’s PowersSlide 66. Governor’s PowersIn addition to those earlier listed, §31-9-6 also provides authority to:In addition to those earlier listed, §31-9-6 also provides authority to:

Make orders, rules and regulations;Make orders, rules and regulations; To utilize all state employees;To utilize all state employees; To utilize any state or local officers or agencies, granting state officer immunity to such, including To utilize any state or local officers or agencies, granting state officer immunity to such, including

volunteersvolunteers

Slide 67. Personal Liability Protections. Slide 67. Personal Liability Protections. Code of Ala, 1975 Code of Ala, 1975 §31-9-16 provides that:§31-9-16 provides that: Except for willful misconduct, gross negligence or bad faith, any “emergency management worker” (EMW) is 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 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 EMWanyone helping out whether paid or not. The business or corp. is also an EMW

Slide 68. Property Protections - Slide 68. Property Protections - § 31-9-17 provides similar liability protections apply to those permitting the § 31-9-17 provides similar liability protections apply to those permitting the state to use their real propertystate to use their real property

Slide 69. Volunteers – Slide 69. Volunteers – Under Under TJC MS 4.110, disaster privileges may be granted when the hospital's emergency TJC MS 4.110, disaster privileges may be granted when the hospital's emergency management plan has been activated and the hospital cannot manage immediate patient care needs:management plan has been activated and the hospital cannot manage immediate patient care needs:

Bylaws clearly delineate who may grant disaster or emergency privilegesBylaws clearly delineate who may grant disaster or emergency privileges Medical Staff identifies how it will oversee volunteer independent staff who receive disaster privileges Medical Staff identifies how it will oversee volunteer independent staff who receive disaster privileges

and how they will be identifiedand how they will be identified

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Hospital complies with Joint Commission "protocol" for issuance of disaster privileges to independent Hospital complies with Joint Commission "protocol" for issuance of disaster privileges to independent license practitioners license practitioners

Consider using ADPH volunteer registry to have volunteers pre-vetted and qualifiedConsider using ADPH volunteer registry to have volunteers pre-vetted and qualified Also, such volunteers Also, such volunteers maymay be “state agents” and thus subject to immunity. Further state agents do not be “state agents” and thus subject to immunity. Further state agents do not

transfer liability to the agencytransfer liability to the agency The “guy who shows up with a chainsaw” should be routed to the Red Cross.The “guy who shows up with a chainsaw” should be routed to the Red Cross.

Slide 70. The Volunteer Service ActSlide 70. The Volunteer Service Act§ 6-5-336. Volunteers Defined. § 6-5-336. Volunteers Defined. A person performing services for a nonprofit organization, a nonprofit A person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual 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 expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.volunteer.

Slide 71. The Volunteer Service ActSlide 71. The Volunteer Service Act

(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a (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:volunteer resulting in damage or injury if:(1) The volunteer was acting in good faith and within the scope of such volunteer's official functions and duties(1) The volunteer was acting in good faith and within the scope of such volunteer's official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; andfor 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.(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 (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 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 "respondeat superior," notwithstanding the responsibility of the organization therefor under the doctrine of "respondeat superior," notwithstanding the immunity granted to the volunteer with respect to any act or omission included under subsection (d).the immunity granted to the volunteer with respect to any act or omission included under subsection (d).

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Slide 72. Part II. ContractsSlide 72. Part II. Contracts

Slide 73. What is a Contract - Slide 73. What is a Contract - Simply, an exchange of mutual promises, written or oral to do legal acts.Simply, an exchange of mutual promises, written or oral to do legal acts.

Slide 74. Types of InstrumentsSlide 74. Types of Instruments ContractsContracts GrantsGrants Benefit Benefit AgreementsAgreements AmendmentsAmendments Purchase OrdersPurchase Orders

Slide 75. Elements of a contractSlide 75. Elements of a contract Offer, Offer, Acceptance, Acceptance, Consideration Consideration Detrimental RelianceDetrimental Reliance “Boiler plate”“Boiler plate” “In writing”“In writing”

Slide 76. Contract Suggestion - DCHSlide 76. Contract Suggestion - DCH36 | P a g e

Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” for 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, 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 letterlike 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 agreementstating your understanding of the verbal agreement

Slide 77. Amendments – Slide 77. Amendments – Use the sUse the same formalities as the instrument, which it amends, and the same process ame formalities as the instrument, which it amends, and the same process as the instrument that it amends.as the instrument that it amends.

Slide 78. Mutual Aid Agreements.Slide 78. Mutual Aid Agreements.

What is Mutual Aid?What is Mutual Aid?Types of Mutual AgreementsTypes of Mutual AgreementsState Emergency Mutual Aid Compacts (EMAC)State Emergency Mutual Aid Compacts (EMAC)EMAC in the Broader SenseEMAC in the Broader SenseCost Reimbursement IssuesCost Reimbursement IssuesCharacteristics of Private AgreementsCharacteristics of Private Agreements

Slide 79. Mutual Aid AgreementsSlide 79. Mutual Aid AgreementsMutual aid can cover a wide range of activities and arrangements between numerous different levels of 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 government. Frequently, mutual aid agreements are not only in writing but also authorized by special legislation. legislation.

For example, in 2004 Congress enacted special legislation to facilitate mutual aid between jurisdictions in the 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 inNational 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. the State of Maryland, the Commonwealth of Virginia, and the District of Columbia.

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The statutory solution here was to provide that the law and court system of a responder’s home jurisdiction 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.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 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 government can commit to send resources elsewhere in advance without knowing whether those resources are required to handle its own problems.are required to handle its own problems.

Slide 80. Mutual Aid: Key CharacteristicsSlide 80. Mutual Aid: Key CharacteristicsSome mutual aid agreements do not provide for compensation. These agreements normally cover small-scale 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 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.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 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 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 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.” compensation. See FEMA Public Assistance Policy No. 9523.6 “Mutual Aid Agreements for Public Assistance.” (September 22, 2004). (September 22, 2004).

Litigation over mutual aid agreements is rare. Most cases have involved employees injured during a response,Litigation over mutual aid agreements is rare. Most cases have involved employees injured during a response, as a result of legal uncertainty over whether worker’s compensation limitations applied and which jurisdiction as a result of legal uncertainty over whether worker’s compensation limitations applied and which jurisdiction was responsible.was responsible.

In the absence of dispute resolution provisions in the mutual aid agreement, disputes between requesting andIn 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 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. example, original jurisdiction over disputes between states is in the United States Supreme Court.

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The federal EMAC enabling law provides that state laws must provide that any employee of the responding The federal EMAC enabling law provides that state laws must provide that any employee of the responding jurisdiction is deemed to be licensed in the requesting jurisdiction. Alabama complies with this.jurisdiction is deemed to be licensed in the requesting jurisdiction. Alabama complies with this.

Slide 81. Slide 81. IntraIntrastate Mutual Aidstate Mutual AidThe National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement toThe National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement to assist states in reviewing their existing legislation.assist states in reviewing their existing legislation. http://www.scd.hawaii.gov/nims/model_intrastate_mutual_aid_legislation.pdfhttp://www.scd.hawaii.gov/nims/model_intrastate_mutual_aid_legislation.pdf

Per that document- 27 States had formal agreements as of February 2004, the latest data I could find.Per that document- 27 States had formal agreements as of February 2004, the latest data I could find. Those states include among others: AL, FL, GA, and MS. I’m sure by now, all are compliant because to be Those states include among others: AL, FL, GA, and MS. I’m sure by now, all are compliant because to be NIMS compliant, a state must have such agreements in place. If not, it cannot receive ASPHER funding.NIMS compliant, a state must have such agreements in place. If not, it cannot receive ASPHER funding.

Intrastate Compact applies to mutual aid provided by governmental entities within the state (for 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.)example: city-to-city; county to city, county to county, etc.)

Draft ‘Model Intrastate Mutual Aid Agreement’ available to statesDraft ‘Model Intrastate Mutual Aid Agreement’ available to states When enacted, assures a written mutual aid agreement available covering local communities when When enacted, assures a written mutual aid agreement available covering local communities when

governor declares emergency governor declares emergency Includes compensation provisionsIncludes compensation provisions

Slide 82. The MOU- Alabama ProspectiveSlide 82. The MOU- Alabama ProspectiveAlabama Hospital Mutual Aid MOU (59 sigs)- See Alabama Hospital Mutual Aid MOU (59 sigs)- See http://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.dochttp://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.doc

MOUs define rights and responsibilities only:MOUs define rights and responsibilities only: Parties: ADPH, hospitals, other providers, responder communities, other regional partiesParties: ADPH, hospitals, other providers, responder communities, other regional parties Disaster – proclaimed, declared or notDisaster – proclaimed, declared or not

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Limitations – players and resourcesLimitations – players and resources The need: identifying & providing resources, personnelThe need: identifying & providing resources, personnel and & care and moving patientsand & care and moving patients

Slide 83. The MOU - PurposeSlide 83. The MOU - Purpose•• Purpose - the Network was created and organized to identify resources to support the coordination of 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-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.made, that exceed the resources of one or more Network Participants.

•• The Network identifies, utilizes, and participates with a variety of health care facilities, specialty care, The Network identifies, utilizes, and participates with a variety of health care facilities, specialty care, tertiary care and general hospitals as well as other resource centers such as private health care providerstertiary care and general hospitals as well as other resource centers such as private health care providers and clinics, and home health agencies;and clinics, and home health agencies;

•• This agreement and relationship among Network Participants is intended to augment, not replace, each This agreement and relationship among Network Participants is intended to augment, not replace, each Network Participant's emergency operationsNetwork Participant's emergency operations plan (EOP). This document does not replace but rather plan (EOP). This document does not replace but rather supplements the governingsupplements the governing law, rules and regulations and procedures and protocols 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 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 management agencies, law enforcement agencies, the local emergency medical services, state and local public health departments, fire departments, and nongovernment disaster response agencies (NGO) public health departments, fire departments, and nongovernment disaster response agencies (NGO) such as the American Red Cross.such as the American Red Cross.

Slide 84. MOU – Not ObligatorySlide 84. MOU – Not ObligatoryNo party is legally obligated to accept patients or send staff, supplies or resources when to do so would 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 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 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 clinical staff, medical and general supplies, including Disaster, to use reasonable efforts to make clinical staff, medical and general supplies, including pharmaceuticals, and biomedical equipment (including, but not limited to ventilators, monitors and infusion 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 pumps) available to each another. Each Network Participant shall be entitled to use its reasonable judgment

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regarding the type and amount of staff, supplies and equipment it can provide without adversely affecting its regarding the type and amount of staff, supplies and equipment it can provide without adversely affecting its own ability to provide essential services.own ability to provide essential services.

However, participants agree to try to assist and to advise of availability of resources through Incident However, participants agree to try to assist and to advise of availability of resources through Incident Management SystemsManagement Systems

The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through the EOCsthe EOCs

Slide 85. MOU – Normal EMA ChainSlide 85. MOU – Normal EMA ChainRequests for mutual assistance follow the normal process of requesting assistance through the local 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 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 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. Emergency Management Agency may escalate requests at the Federal level.

The Network, through the Emergency Operations Centers will coordinate efforts between Network 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 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. 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, 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 thehereinafter 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 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 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 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 scheduled by the Network to discuss issues related to this Network and if needed, to revise the Network

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Memorandum of Understanding. The Designated Representative or delegated individual shall act as a liaison 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.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 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 Representatives who have operational authority to commit the resources of the Participant as specified in the Participant Emergency Operations Plan.Participant Emergency Operations Plan.

In the event of a Disaster, Network Participants agree to inform their non-employee medical staff members of 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 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 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 receiveemployment status, licensure, training and other information necessary in order for such volunteers to receive emergency credentials.emergency credentials.

Slide 86. MOU Reimbursement, Non-Exclusivity, WithdrawalSlide 86. MOU Reimbursement, Non-Exclusivity, WithdrawalNetwork Participants cannot guarantee reimbursement for assistance, facilities, supplies or other types of Network Participants cannot guarantee reimbursement for assistance, facilities, supplies or other types of support. However, to the extent that reimbursement may be available, every effort will be made to obtain 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 such reimbursement through federal or other monies as they become available as long as the Network Participant is not reimbursed for the medical assistance, facilities, supplies or other types of support by Participant is not reimbursed for the medical assistance, facilities, supplies or other types of support by insurance, Medicare, Medicaid, or other third party payor. insurance, Medicare, Medicaid, or other third party payor.

To ensure effectiveness, Network Participants will be given an opportunity to participate in periodic Network 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.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 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.conjunction with voluntary participation in the Network.

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Nothing in this agreement shall be construed as limiting the rights of the Network Participants to affiliate or 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 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. 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 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 written notice to the other parties. However, if no such notice is given, the Network agreement remains in effect in perpetuity. effect in perpetuity.

Slide 87. MOU - LiabilitySlide 87. MOU - LiabilityParticipants assume no liability merely by becoming a signatory to the MOUParticipants assume no liability merely by becoming a signatory to the MOUHowever, participants may be liable for acts and omissions of their staff in performance under the MOU or However, participants may be liable for acts and omissions of their staff in performance under the MOU or governmental ordersgovernmental ordersAlso, in following their pre-approved plan, in case of Declaration by Governor, there may be certain Also, in following their pre-approved plan, in case of Declaration by Governor, there may be certain immunities for staffimmunities for staff

Slide 88. Transportation/EMS ContractsSlide 88. Transportation/EMS ContractsOut of state ambulances are forbidden to make point to point runs within the state.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. Otherwise, state EMS rules allow full use of ambulances from out of state into the state. Rules could be waived. Even so, would there be enough ambulances in a disaster if all hospitals contract w/ Rules could be waived. Even so, would there be enough ambulances in a disaster if all hospitals contract w/ same EMS ambulance Co? What other vehicles could be used? same EMS ambulance Co? What other vehicles could be used?

Common carriersCommon carriers School & municipal bussesSchool & municipal busses

Slide 89. Transfer Agreement IssuesSlide 89. Transfer Agreement Issues Got appropriate transfer agreements?Got appropriate transfer agreements? Could they go out of state perhaps?Could they go out of state perhaps? To what types of facilities?To what types of facilities?

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Do you have agreements with carriers?Do you have agreements with carriers? Are there backups for everything? Are there backups for everything? Could your EMAC Agreements incorporate cooperation on “transfer agreement” language and use of Could your EMAC Agreements incorporate cooperation on “transfer agreement” language and use of

resources?resources? Security & supplies of personnel and patients?Security & supplies of personnel and patients? Records be transferred electronically (EMR)?Records be transferred electronically (EMR)?

Slide 90. Private Agreements Slide 90. Private Agreements The example of mutual aid agreements is the “Metropolitan Area Hospital Compact” of the Twin Cities. It doesThe example of mutual aid agreements is the “Metropolitan Area Hospital Compact” of the Twin Cities. It does the following: the following:

•• specifies that the agreement is not a legally binding contract; rather it outlines a general policy of 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.cooperation and coordination in the event of a disaster.

•• emphasizes that the agreement is voluntary.emphasizes that the agreement is voluntary.•• designates a mechanism through which signatory organizations can communicate with one another to designates a mechanism through which signatory organizations can communicate with one another to

request aid in the event of a disaster.request aid in the event of a disaster.•• requires a signature of the organization’s representative. requires a signature of the organization’s representative.

It addresses:It addresses:•• Communications including liaison officers, EOCs, includes a joint public information center provisionCommunications including liaison officers, EOCs, includes a joint public information center provision•• Forced evacuation – distributes patients equallyForced evacuation – distributes patients equally•• Cooperates with NDMS activationCooperates with NDMS activation•• Requires reporting of bed capacity. (In Alabama use AIMS )Requires reporting of bed capacity. (In Alabama use AIMS )•• Discusses auxiliary locations in sever disaster and how each hospital will contribute personnel to man Discusses auxiliary locations in sever disaster and how each hospital will contribute personnel to man

such a facilitysuch a facility•• Discusses sharing of staffDiscusses sharing of staff

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Slide 91. Contractual Liability - Slide 91. Contractual Liability - A contract is just a legally enforceable promise between two or more parties. 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 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 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- are an agreement between the parties and some consideration - something of value, not necessarily money- that is exchanged by the parties. However, remember the rule above, “if it ain’t wrote down, it didn’t that is exchanged by the parties. However, remember the rule above, “if it ain’t wrote down, it didn’t happen,” so, get it in writing if at all possible.happen,” so, get it in writing if at all possible.

So how can contractual liability come into play for programs? It can surface in several ways, which are listed So how can contractual liability come into play for 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 on this slide. One of the most important exposures is assuming liability from the other party in a contract, For example, a facility may be asked to agree in a contract or letter of agreement that it will be responsible for anyexample, a facility 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 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 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. it doesn’t have, leaving it in breach of contract for failing to have it.

Slide 92. Avoiding/Reducing LiabilitySlide 92. Avoiding/Reducing LiabilityRisk management is approached on two levels: Agency level and Individual level.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”)Avoiding liability means not being held liable in court (it does not mean “can’t be sued”)

Slide 93. Internal Practices to Reduce Liability Risk – Provide forSlide 93. Internal Practices to Reduce Liability Risk – Provide for Credentialing and assignment to appropriate dutiesCredentialing and assignment to appropriate duties Criminal background checksCriminal background checks Verifying necessary licenses (professional, driving, watercraft)Verifying necessary licenses (professional, driving, watercraft) Clear activation and deactivation proceduresClear activation and deactivation procedures Employee orientation, training and exercisesEmployee orientation, training and exercises

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Employee identification badgesEmployee identification badgesSlide 94. Internal (2)Slide 94. Internal (2)

Written partnership agreements stating roles & responsibilitiesWritten partnership agreements stating roles & responsibilities Written engagement/utilization records Written engagement/utilization records Procedures for keeping patient treatment notesProcedures for keeping patient treatment notes Rules of conduct and grounds for dismissalRules of conduct and grounds for dismissal Communications proceduresCommunications procedures Post-incident debriefingPost-incident debriefing

Slide 95. Practical Advice – Liability, and Out of State ProvidersSlide 95. Practical Advice – Liability, and Out of State ProvidersDisaster PrivilegesDisaster Privileges

Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge by staff member)by staff member)

Assign provider to area qualified to workAssign provider to area qualified to work Abbreviated orientation program for emergency personnel Abbreviated orientation program for emergency personnel

Brief on state-specific liability issues such as Licensure, Good Samaritan, and Med-Mal Laws. Consider using Brief on state-specific liability issues such as Licensure, Good Samaritan, and Med-Mal Laws. Consider using ADPH volunteer system to vet out of state personnel.ADPH volunteer system to vet out of state personnel.

Slide 96. See AlsoSlide 96. See AlsoHospitals and Community, Emergency Response - What You Need to Know,Hospitals and Community, Emergency Response - What You Need to Know,Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)TJC Standards on Hospital Emergency Planning: CAMH/HospitalsTJC Standards on Hospital Emergency Planning: CAMH/Hospitals

Slide 97. More Resources - TJCSlide 97. More Resources - TJCHealthcare at the CrossroadsHealthcare at the Crossroads TJC http://www.google.com/url? TJC http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2Fsa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2F46 | P a g e

%2Fwww.jointcommission.org%2Fassets%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTD%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3QAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3Q

Slide 98. Example Hospital TJC PlanSlide 98. Example Hospital TJC PlanAn example plan is found at: An example plan is found at: http://www.uhb.org/pnp/dsplan.htmhttp://www.uhb.org/pnp/dsplan.htm. This is from the State University of New . This is from the State University of New York Hospital System.York Hospital System.

Slide 99. Finished!Slide 99. Finished!

Slide 100. Slide 100. See “ARRTC,” a download on Slideshare 7 <slideshare.net>See “ARRTC,” a download on Slideshare 7 <slideshare.net>

See also on Facebook.See also on Facebook.

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