Special Report: Lessons from Hurricane Katrina
Don't rely on outside parties to do what they say
Risk managers may be shocked to realize how much of their disaster plan relies on other entities beyond their control, says William Spratt, JD, a partner with the law firm of Kirkpatrick & Lockhart in Miami.
As the former long-term care administrator for Dade County, FL, Spratt has been through several hurricanes himself. That experience taught him that there always is some level of disconnect between your plan and what actually happens when the crisis comes, and the problems usually occur when you rely on another organization to help.
He recommends this exercise: Go through your disaster plan and note how many times it refers to another organization that will provide aid, supplies, staffing, or advice. Next, determine how many times you have tested that arrangement. The key question, he says, is whether your plan includes any alternatives when that arrangement falls through.
Relying on others for transportation and other aid is inevitable, but Spratt says you should follow up with those partners periodically to confirm that they are willing and able to help in the way you expect.
“It's not just the equipment; it's the staffing, as well," he says. “That's a problem in most evacuation scenarios because the people you are relying on to come to work and help with your crisis may be at home dealing with their own families. Or even if they want to come and help you, they can't get to you."
Look at the practicality of a disaster plan in light of what was learned in Hurricane Katrina, advises Cheryl Camin, JD, an attorney with the Dallas law firm of Gardere Wynne who works closely with health care providers in disaster planning and other issues. Full-scale drills and role-playing scenarios may help reveal weak points in a plan that seems fine on paper until you actually ask the ambulance company to send 30 rigs for an evacuation.
The Hurricane Katrina experience shows that vendors may be weak points in any provider's disaster planning, she says. Most hospital disaster plans include a heavy reliance on vendors for critical services that will keep the hospital operational, but Camin says her contacts at the New Orleans hospitals found that they could not always rely on those agreements. They had contracts for lab work, security, and decontamination, and then when they called on them, the companies couldn't do the job, she says. “Either they were too busy, they were in a crisis themselves, or they had left town." Unfortunately, risk managers won't have much cause of action after being let down like that, she adds.
“The contracts almost always have a clause that holds them harmless in the event of an act of God, force majeure, war, anything huge like that," Camin explains. “It would be hard to argue that they should have adhered to the contract even though the whole city was evacuated."
Nevertheless, she suspects there may be lawsuits against vendors who did not fulfill their part of the deal. Hospitals and other facilities that were left without critical services may argue that the vendors knew they were contracting for business during an emergency and therefore should have had sufficient arrangements. Camin also expects lawsuits filed by patients and family members who were inconvenienced, or worse, by the evacuation or the substandard care at hospitals after the storm. Most of those lawsuits will be frivolous and easily defended, she says.
The weeks after the hurricane may yield more serious lawsuits, as volunteers, vendors, and others enter health care facilities to help them recover and inevitably, some of them will be injured or fall ill from the toxic flood waters. “With cleanup services, utility repair, everything, you're probably going to get a lot of new, relatively inexperienced people in there because there just aren't enough people to do the job," Camin says. “That means injuries on your property, and it also means you may be getting a level of work that you normally would not accept in terms of quality and safety."
Risk managers should lead the way in investigating how their own facilities responded to the disaster, Spratt says. One area that concerns him is the manner in which patients were discharged from hospitals as the hurricane approached. Most hospital disaster plans call for the immediate discharge of all patients who can be sent home safely, but Spratt says he worries that in the haste to get patients out, discharge procedures may not have been followed.
Discharging patients without proper home care instructions, medications, medical equipment, or other arrangements could jeopardize their safety and expose the facility to liability, he says.
Spratt cautions that, aside from any regulatory penalties or criminal charges, health care providers can be held civilly liable for failing to prepare and respond adequately. There is a civil cause of action for both negligence and negligence per se, the latter being a clear-cut case in which the provider does not comply with a statute, law, or regulation that was in place to prevent harm. If the plaintiff can prove negligence per se, there is no need to prove that your breached a standard of care.
For disaster planning, Spratt says a hospital could be found guilty of negligence per se if it did not comply with regulations requiring a plan that is detailed, well thought out, and includes backups and contingency plans. The nature of the disaster has some impact on how much you can be held liable for deficiencies, he says. The more you can foresee the type of disaster that can strike your community, the more you are expected to plan thoroughly for that scenario.
In New Orleans, some hospitals' plans contemplated that they would be running on generators, but the plan didn't count on the first floor being flooded and the generators underwater," Spratt says. “You have to have a multilayered plan that says, “If this happens, we respond this way,'" Spratt says. “And then if this happens too, we'll respond this way, and so on."
Risk managers may be shocked to realize how much of their disaster plan relies on other entities beyond their control, says William Spratt, JD, a partner with the law firm of Kirkpatrick & Lockhart in Miami.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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