Special Report: Lessons from Hurricane Katrina
Best practices checklist may be used in court
For any claims arising after an evacuation or disaster involving your organization, the key issue may be whether you prepared as well as you should have and then executed your plan effectively. To determine that, experts say courts may rely on the “Emergency Preparedness, Response and Recovery Checklist: Beyond the Emergency Management Plan" issued in December 2004 by the American Health Lawyers Association (AHLA) in Washington, DC.
The checklist is intended to help hospitals identify the key legal and operational issues arising in the event of a public health crisis, environmental disaster, or terrorist threat. In particular, the checklist is intended to help hospitals and other health care providers put their emergency management plans into actual practice, rather than just a written, hypothetical plan. (Access and download the checklist at www.healthlawyers.org/Checklist)
The checklist is organized around the traditional Incident Command Structure (ICS) that provides a scalable approach to emergency management and is familiar to health care professionals. The ICS identifies key roles within an organization, including responsibility for each role and assignment of individuals and resources to those roles based on availability during an emergency. Overall authority and responsibility for operations are assigned to an incident commander. The incident commander oversees four sections: operations, planning, logistics, and finance. Although each section has its own chief, the incident commander is responsible for the emergency management plan and must ensure that hospital personnel and medical staff know:
- what constitutes a disaster that could trigger the implementation of the emergency management plan;
- what code is called to announce the disaster;
- where the staff is to report after an emergency is declared;
- how staff attendance will be reported;
- the role and skills of staff members and how they may contribute to the coordination of an emergency response;
- how to develop family emergency plans so that medical staff members can be confident of their families' safety while they fulfill their obligations to respond during an emergency situation.
The 43-page checklist encourages hospitals and health care providers to engage in four phases of preparedness: preparation, mitigation, response, and recovery. Some of the issues discussed include:
- chain of command;
- responsibilities of each employee;
- legal and logistical concerns when isolation is required;
- patient diversion and the Emergency Medical Treatment and Labor Act (EMTALA);
- patient tracking and placement;
- reporting requirements imposed by each state and the federal government;
- personnel issues, including ensuring that workers are safeguarded;
- the interplay of federal and state labor and discrimination laws in the event of an emergency;
- compensation and fiscal liability issues;
- credentialing, including granting disaster privileges to permit outside medical personnel to assist regular staff during an emergency;
- corporate governance, including chain of succession;
- backup of information technology in the event of an emergency;
- vendor contacting to ensure responsibility of vendors is clear;
- financial considerations to plan for the organization's continued financial health.
Finally, the checklist states that a hospital or other health care providers should choose a command center. In choosing a location, the institution should consider what types of emergencies the institution will need to respond to so that the center is located in an easily accessible location that is close to the response but not so close as to risk interfering with it. Hospitals also are advised to determine whether the command center is serviced by emergency generators, whether it is properly equipped and supplied, and whether it is movable if necessary.
Courts will not be dissuaded by the fact that the AHLA checklist is not a legal or accrediting requirement, says Deborah Gordon, JD, a partner with Seyfarth Shaw in Chicago. “The checklist could be viewed as a set of ‘best practices' guidelines. If a hospital in the affected area was not compliant with either state law requirements or accreditation entities' requirements, clearly they will have potential liability. But I also would argue that if they did not also adopt the AHLA's emergency preparedness checklist, there is potential liability."
Health care providers have a duty not just to comply with the appropriate local, state, and federal requirements for emergency preparedness, but also to keep up with the rest of the industry, says Karen Harris, JD, also a health care attorney with Seyfarth Shaw. The checklist represents a collection of best practices in the industry, so it is not farfetched to think that courts will see it as the expected level of compliance for health care providers, she adds.
Linda Ross, JD, partner at Detroit-based Honigman Miller, also endorses the idea that the AHLA checklist is becoming the de facto standard of care for disaster planning. The information in those guidelines could serve as a template for courts to determine whether a health care organization did all that it should have to prepare for an emergency, she says.
It's not that courts are going to hold you responsible for every possible thing that would have been a good idea in retrospect, Ross says.
“It's all about what was reasonable and what was considered the gold standard in terms of planning for these events," she says. “When they go looking for some consensus on what health care providers should do, I think they're going to turn to the AHLA checklist."
For any claims arising after an evacuation or disaster involving your organization, the key issue may be whether you prepared as well as you should have and then executed your plan effectively. To determine that, experts say courts may rely on the Emergency Preparedness, Response and Recovery Checklist: Beyond the Emergency Management Plan" issued in December 2004 by the American Health Lawyers Association (AHLA) in Washington, DC.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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