Failure to provide backup power results in death and a $450,000 Massachusetts settlement
By Jan J. Gorrie, Esq.
Buchanan Ingersoll PC Tampa, FL
News: A retired polio survivor, who was medically dependent upon a negative pressure breathing jacket and a biPAP machine, shared a room in a nursing home with her spouse. During a power outage, the facility’s emergency generators failed to operate. Without electricity for her medical device, the nursing home resident went into respiratory distress. There was confusion about her do-not-resuscitate order (DNR) and cardiopulmonary resuscitation (CPR) was not immediately administered. She was placed on life support and transported to a hospital where she died shortly after the ventilator was removed.
Background: The 72-year-old retiree and her spouse shared a room in a nursing home. She had survived polio and suffered from several associated disabilities and medical conditions that required constant supervision. She could breathe on her own while awake, but needed the breathing apparati while she slept. The machinery consisted of a negative-pressure breathing jacket (NPJ), which was a partial body suit, and a biPAP machine; both were electricity dependent.
Three months after moving into the nursing facility, two power outages occurred. The first happened during an afternoon and the emergency generator immediately came on and functioned properly. The second outage was at night and the generator failed. The NPJ and biPAP machine were plugged into a special outlet that was supposed to, but did not, receive emergency power. The elderly woman went into respiratory distress and became unresponsive. Due to her DNR, there was confusion among the facility’s personnel as to what to do, and CPR was not administered until the decedent’s husband revoked the DNR. She was placed on life support and transported to the hospital. The next day, the ventilator was removed and she died.
The plaintiff claimed that the defendant nursing home was negligent in failing to provide reliable emergency power for the medically necessary life support system. The defendant countered that the power failure was beyond its control. The plaintiff also faulted the facility for delaying the administration of CPR under the unusual and extraordinary circumstances that caused her to go into respiratory arrest. A $450,000 settlement was reached prior to trial.
What this means to you: The review of this case is timely for risk managers who are plagued by weather concerns — possibly associated with hurricane and tornado season — worried about national security, or followed Terri Schiavo’s case.
Depending upon where you are in the country, power outages may be common, routine, or rare. Their occurrence may vary by the time of year. For instance, the midwestern and northern states may have an increased risk for power outages in the wintertime in conjunction with heavy snow and/or ice storms. In the South, the onset of summer thunderstorms often is associated with outages. And some, like the 2003 grid failure in the Northeast, just happen.
"Regardless of the time of year or cause of the power outage, facilities should, to the best of their abilities, make appropriate allowances and contingency plans for patients who are dependent upon medically essential electric-powered equipment," says Jay Wolfson, DrPH, JD, distinguished service professor for public health and medicine at the University of South Florida in Tampa, and the appointed guardian ad litem for Terri Schiavo.
"Facilities are also advised to review and know the status of the law in their backyard for, in some jurisdictions, the liability for the interruption of electric services — regardless of the reason for the outage (including nonpayment of the electric bill) — is statutorily assigned to the utility customer and ultimate responsibility is placed on the utility customer for any backup equipment or power supply. This potentially takes the utility companies out of the liability loop, and in this case, the utility customer would likely have been considered the nursing home as opposed to the resident," he notes.
Depending upon the jurisdiction, there may also be statutory requirements placed on health care facilities over and above that of other utility customers to provide backup power, such as a requirement to have a generator.
"Even if there are no statutory requirements placed on nursing homes or health care facilities to provide backup medical equipment and/or electricity, an inventory of residents or patients that are dependent upon electric-powered equipment would have been helpful under the circumstances described in the case. Such a list would have provided staff with a prioritized list for triage, transport, and treatment as necessary. If the staff at this particular nursing home had a list of patients who were energy-dependent, someone might have known that simply waking up the patient may have saved her life. Unfortunately, staff arrived too late and was unsure about what to do under the circumstances," Wolfson explains.
While the case appears to be one of a routine or normal power outage, liability issues may be different in cases where the power outage is associated with a declared state of emergency.
"Liability rules change with the advent of a state of emergency and had that been the circumstance giving rise to the power outage in the case presented, the facility may have fallen under limited immunity under the premise that the outage was not only out of its control but out of any entity’s control. This may not have had any affect on the nursing home’s responsibility for its residents. However, it may mitigate the liability associated with new arrivals and victims of the state of emergency. For the standard of care may be different for those already entrusted to your care as opposed to those seeking care out of necessity," he says.
"Follow one of the credos of risk managers: What is the worst-case scenario? Keep in mind the Sept. 11 terrorist attacks, local weather patterns associated with various seasons, and events such as earthquakes and how they might play out in your community and for your particular institutions and organizations. Risk managers should become familiar with state laws and regulations and even local ordinances that may relate to such disasters — before they occur. This may also give rise to your review of force majeure or Act of God contract clauses with utility providers and other contractors upon whom you might rely for various services — particularly essential services. The language in those contracts can help to identify problems beyond the reasonable control of the parties to an agreement that will excuse performance of the terms of the agreement. You may want to tie your performance under such circumstances to that of your contracted services, so that the other party is required to perform to the extent that you remain in operation," Wolfson advises.
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"Disasters and weather aside, health care facilities are bound to follow the health care decisions and directives made by their patients, and if the facility is unable to do so for whatever reason, then the patient should be transferred or assistance should be given to help resolve the matter. Of course, this presumes that contingency plans have been designed," he adds.
Following this case example, upon admission to a health care facility, one of the key questions is whether you have a DNR, and this question often is followed by whether or not the patient has a living will, health surrogate or other health decision makers. While both are indicative of health care decisions, the two instruments are very different. A DNR is a physician order advising that, in the event the patient goes into either cardiac or respiratory arrest, no CPR should be given the patient. Medical personnel including emergency medical technicians, paramedics, hospital emergency services, nursing homes, assisted living facilities, home health agencies, hospices, and adult family care centers may honor a properly executed DNR order. And, absent a visible or known DNR order, every person and patient is presumed to consent to CPR.
But be aware of your state laws. In some jurisdictions, for the DNR order to be valid it must be on a specific form adopted for use in that particular jurisdiction. Many states will not honor a DNR executed in another state. In addition, the form must be signed by the patient’s physician and by the patient or if the patient is incapacitated, the patient’s health care surrogate, proxy, attorney in fact under a durable power of attorney, or court-appointed guardian. The form and format of the DNR is different from a living will in that a physician signs the form but it is not otherwise witnessed and as such does not constitute an advance health care directive.
"Even if the DNR is properly executed, valid and visible, it may only allow for the possibility of the withholding or withdraw of CPR. This allows the health care practitioner some latitude to make a judgment call in light of the prevailing circumstances, which is important for, as noted, some jurisdictions do not allow the DNR form to be customized," Wolfson explains.
"Most persons executing a DNR arguably believe or assume that they are doing so that, in the event they experience cardiac or respiratory arrest as a result of the normal course of nature, CPR will not be administered. This would not reasonably include the failure in an institution’s power backup system. While it appears from the facts presented, the power outage was not intentional and may have occurred naturally, it may not have been a cause of arrest contemplated by the woman or her spouse. We do not know from the facts presented what the staff really thought about her condition when they arrived on the scene. Staff may have believed that it was too late to administer meaningful CPR and stood behind the DNR as much as matter of the medical circumstances at the time of arrival opposed to the unexpected reason for the respiratory arrest. It does appear that there was some discussion of the matter between the spouse and staff, but ultimately the spouse withdrew the order, though we don’t know how long it took for him to do so. The bottom line is that a jury may be comfortable viewing the circumstance as something that could have been prevented," he adds.
Living wills differ from DNRs. Living wills and advance health care directives are the result of landmark legislation. Congress was urged to take action in light of the tragic case of accident victim Nancy Cruzan. Her parents fought and eventually gained the right to make end-of-life decisions on her behalf. The Patient Self-Determination Act of 1990 allows competent persons to make binding, legal decisions about their health care preferences, including the ability to withhold life-prolonging procedures. In turn, most states have enacted advanced health care directives legislation and most will honor the directives produced in compliance with the other jurisdictions.
"Following the experience with the Schiavo case, living wills with greater, rather than lesser, specificity are encouraged. For example, they should state whether or not antibiotics or therapy for newly diagnosed conditions should be initiated, withdrawn or avoided in the first place. And clear reference should probably be made to initiation and/or termination of artificial support systems including respirators, feeding and hydration tubes," Wolfson warns.
Health care surrogates are separate from, but should be used in conjunction with, a living will. The surrogate creates the equivalent of a power of attorney for the making of health care decisions. It delegates to a specific individual the legal authority to make either general or limited, specific decisions about a person’s health and medical care. Its form may vary across jurisdictions, but it generally requires witnessed and notarized signatures. The nexus of the living will and the health care surrogate occur when the surrogate moves to initiate, discontinue or not receive medical interventions in order to execute the intentions of the living will.
"While not highlighted but certainly noted in the case was the decision to withdraw life-support from the patient. We are not told if the decision was made pursuant to a living will or by her spouse as a health care surrogate, but it appears to be an uncontested decision. And, too, once the ventilator was detached, the patient died and the subsequent decision to administer any further life-prolonging procedures such as hydration and/or sustenance did not need to be made," Wolfson notes.
"This case is unlike the more recent case of note involving the decision to withdraw life-prolonging procedures, which was and still is to some extent the hotly contested, debated, and publicized case of Terri Schiavo. Ms. Schiavo did not have a written living will or a health care surrogate, and her parents vehemently disagreed with the decision made by the patient’s husband who was also her court-appointed guardian. Ms. Schiavo survived the removal of ventilator following a cardiac arrest and a coma, and was able to breathe on her own, unlike the polio survivor who had been dependent upon breathing apparati for most of her life. Taking the elderly woman off the ventilator had the expected effect, but further debate may have ensued if that had not happened," he says.
"The threshold questions to remove life-prolonging procedures or perhaps more importantly, who may make that decision is multistepped. First, the patient must not be capable of making his or her own decisions; and this must be evaluated, determined, and documented by a physician. Check your state laws regarding incapacity. In this case and in Ms. Schiavo’s case, there was no question that the patient lacked the capacity to act or decide on their own behalf. Second, in terms of Florida and many other state laws, prior to the withdrawal of life-prolonging procedures, the incapacitated person must have either a terminal condition, end-stage condition, or be in a persistent vegetative state. Suffering from a debilitating stroke or being in a coma is not necessarily sufficient to meet the second step in the determination, and establishing whether the criteria are met may fall to the courts — particularly when there is doubt as to the patient’s wishes," Wolfson continues.
"Critical in the process is determining who can, in the absence of clear and evidenced [preferably written] directives, make those decisions. It appears in the instant case that the spouse was the patient’s health surrogate and given that she had a DNR she may have also had a living will and other viable advanced health directive instruments. So residual doubt as to her wishes/intentions would be reduced. Again, this is unlike the circumstance in Ms. Schiavo’s case, where the parents and family did not agree with the decisions being made and carried out by Ms. Schiavo’s husband, who was her court-appointed guardian. Numerous times over the course of Ms. Schiavo’s care and treatment, her parents challenged her husband’s guardianship appointment, but it was repeatedly upheld by the courts," he adds.
"We often say that more than anything else, risk management is the exercise of common sense. But we still take a great deal for granted, and sometimes presume that bad case scenarios won’t affect us. Consistent, systematized risk management protocols relating to patients who may die in a facility, are essential to liability protection. Risk managers should encourage unambiguous means of classifying patients into risk categories. This should serve as a basis for ascertaining if and how patients might be affected by unexpected power outages, changes in temperature — or how staff should respond in the event of a circumstance that could result naturally or otherwise in the patient’s death or injury," Wolfson concludes.
By Jan J. Gorrie, Esq. Buchanan Ingersoll PC Tampa, FLYou have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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