Special Report: Lessons from Hurricane Katrina
Liability depends on planning, executing plans
In assessing liability for any injury or loss of life during an evacuation, a key question will be whether the organization followed instructions from the local authorities, says Kevin Lyles, JD, an attorney with the law firm Jones Day in Columbus, OH. Lyles co-chairs Jones Day's health care practice and oversees the firm's privacy practice.
“If they started an evacuation when they were told to, I think it's going to be hard to say that they didn't evacuate soon enough, and therefore people died," he says.
Hospitals are responsible for having evacuation plans and executing them, but they generally rely on the local authorities to tell them when evacuation is necessary, Lyles adds. “I think you have a good excuse if you followed the authorities' advice and did what they said, when they said to do it."
Juries probably will not be sympathetic to a plaintiff claiming injury during the evacuation, he says, because they understand that a hospital evacuation always is a difficult and dangerous endeavor. A jury is not going to automatically assume that a loss of life during an evacuation is evidence of liability, he says.
“There will be lawsuits and there will be settlements, maybe even some verdicts, but I don't expect a lot of lawsuits emerging from the evacuation efforts in New Orleans," Lyles says. “I think people are going to realize we were all in this together, and unfortunately some people lost their lives as we were trying to do the best we could to protect them."
He notes that the situation is very different if a health care organization did not adequately plan for a disaster or evacuation, or did not execute its plan effectively. That's completely different from a situation in which the hospital planned well, responded in good faith, and still suffered losses, Lyles says.
Nursing home deaths bring criminal charges
One such example might the St. Rita's nursing home outside of New Orleans. Deborah Gordon, JD, a partner with the law firm of Seyfarth Shaw in Chicago, says the story of St. Rita's is shaping up as a good example of how to create the most liability for your organization. Initial reports indicate that the facility had evacuation plans that satisfied all regulatory requirements, but local authorities report that the owners never implemented them.
Parish coroner Bryan Bertucci, MD, released a statement saying the owners of the privately owned nursing home had the required evacuation plan: Ambulances and school buses would ferry the elderly residents, about 60 of them, to safer ground. The facility also had a generator and other emergency supplies. Bertucci says officials called the home several times inquiring about whether it was being evacuated and even offered two buses and drivers, but the owners reportedly said no.
Some 20 or so residents were rescued by passersby as the water quickly rose. But after the flooding, rescuers found a nightmarish scene in the nursing home: 34 bodies and evidence that the helpless residents had drowned as the water rose to the ceiling, some of them floating up to the ceiling on their mattresses before finally succumbing.
Though initial reports indicated the owners simply abandoned the residents, later reports suggest the owners may have been well intentioned but made a grave mistake in deciding not to evacuate despite having plans and the means to do so. Bertucci says the owners, Salvador and Mable Mangano, were known for operating a high-quality nursing home in the working-class suburb and they apparently thought they could ride out the storm. Despite having an evacuation plan and available transportation, the owners might have worried that transporting the frail patients would cause the deaths of several.
The owners of St. Rita's were charged with 34 counts of involuntary manslaughter in the deaths. James A. Cobb, JD, a New Orleans lawyer representing the Manganos, did not return calls from Healthcare Risk Management seeking comment.
In terms of your potential liability, it's almost worse to have elaborate plans and never put them in place than it is to never have a plan, Gordon says. “Clearly, they had a plan in place and it didn't get done when the time came," she says. “Any plaintiff's attorney is going to hold that plan up in court and say, ‘Here's what they should have done; and because they didn't, these people died.'"
It appears that the nursing home owners violated the most important rule regarding emergency preparedness, says Linda Ross, JD, partner at Detroit-based Honigman Miller, who counsels health care facilities on regulatory matters, including disaster planning. The most important rule is to actually carry out your plans when the time comes, she says.
“I have to think that there is going to be some serious liability there," Ross says. “We don't know exactly what happened, but if they just left patients in their beds and jumped ship, a court is going to say that a reasonable person would have done something else."
If the owners of St. Rita's are found guilty of criminal conduct or an egregious case of negligence, the facility's insurance probably will not cover any civil lawsuits arising from the incident, Gordon says.
Donna Klein, JD, of the law firm McGlinchey Stafford in New Orleans, says that even if the St. Rita's experience is an egregious case of neglect and misconduct, it could serve as a lesson for risk managers nationwide. If you have an evacuation plan but don't execute it or don't execute it effectively, you may face hundreds of lawsuits as soon as plaintiff's lawyers in your community get their offices open again, she says.
“Family members of the deceased can file claims alleging either negligent conduct, implementing the professional liability policy or, in your state, they might be able to allege administrative negligence or willful misconduct that will get them around any state limits on negligent conduct," Klein says. “Administrative failure to follow policy can get you into that situation even if the situation is nothing as egregious as what apparently happened at St. Rita's."
Klein says she expects to see lawsuits claiming administrative failure as soon as lawsuits can be filed in New Orleans and the Gulf area. The governor suspended the one-year statute of limitations on medical malpractice lawsuits after the storm, she says.
Klein also notes another unfortunate truth for risk managers during a disaster: The other non-disaster related lawsuits don't stop coming just because your community is a shambles.
“We've had many providers who have been served with lawsuits during the disaster, claims that had nothing to do with the storm, just lawsuits filed in the normal course of business," Klein says.
Part of planning needs to be that you have a way to respond to those claims in the same way you would normally, she says. “Risk managers ought to make sure you can contact your insurer or your counsel, no matter what else is going on, so you don't get a default judgment on those other lawsuits."
In assessing liability for any injury or loss of life during an evacuation, a key question will be whether the organization followed instructions from the local authorities, says Kevin Lyles, JD, an attorney with the law firm Jones Day in Columbus, OH. Lyles co-chairs Jones Day's health care practice and oversees the firm's privacy practice.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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