Planning for Misery

A lawsuit in Louisiana could affect how hospitals handle, and are liable for, their emergency preparedness. Lessons should be applied from Katrina, and now Haiti.

By MATTHEW BRODSKY, senior editor/Web editor of Risk & Insurance®

Althea LaCoste was admitted to Pendleton Memorial Methodist Hospital on August 28, 2005. The 73-year-old woman was recovering from pneumonia and required the use of a ventilator. Normally, that's something a U.S. healthcare facility could handle. But then Hurricane Katrina struck on Aug. 29. During the flooding that followed in Katrina's wake, the hospital's emergency power system failed. LaCoste did not survive without her respirator in the darkness and the heat.

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Her family is suing the hospital in the Civil District Court of the Parish of Orleans, a case that began last week and is heralded as forcing a change in the way hospitals prepare for and handle emergencies. As news reports have warned, the case could open up a new source of liability for hospitals (failure of their emergency preparedness plans), or, according to another news article, could lead to healthcare professionals even perhaps refusing to help patients during disaster for fear of a lawsuit.

It might turn out, however, that the impact of the LaCoste lawsuit (and the approximately 200 other similar Katrina-related cases) won't be so drastic.

One crux of the LaCoste case has already been decided in court: that failure of disaster preparedness is not a medical-malpractice issue but a matter of general negligence.

In a Sept. 2007 decision, the Louisiana Supreme Court agreed with the district court that the LaCoste family's allegations aren't related to medical malpractice but instead "relate to deficient design of the hospital including lack of emergency power, failure to implement an evacuation plan and failure to have a facility to transfer patients."

Damages in med-mal cases are capped at $500,000 in Louisiana. Not so with general negligence.

"The plaintiff has the availability to sue for a broader spectrum of damages," said Gary Thompson, partner in the Washington, D.C., office of Reed Smith.

With a general negligence case, a hospital should be covered (including duty to defend) under general liability insurance, unless some sort of nefarious act by an employee triggers the intentional or criminal misconduct exclusion. A third-party personal injury caused by negligence is "square in the wheelhouse" of what GL policies cover, added Thompson.

Should GL insurers now expect a "flood" of cases because of poor hospital emergency preparedness?

Most likely not. Excluding these Katrina cases in Louisiana, many hospital risk managers appear to be very familiar with, and adept at, emergency preparedness.

Cindy Wallace, senior risk management analyst at ECRI Institute, a healthcare research organization in Plymouth Meeting, Pa., said that emergency preparedness really came to the forefront of risk managers' minds after Sept. 11, 2001, and Hurricane Katrina. They wanted to learn from those disasters.

"I think what you see now is, they have done that. They've revised their plans based on what was learned in past years, and they continue to monitor those plans," she said.

In fact, they have to revisit their emergency plans at least once a year, and test them with drills at least twice a year, to maintain Joint Commission accreditation. Depending on the jurisdiction, Wallace added, hospitals might have to meet local, state or even federal guidelines for emergency planning.

Protecting patients and serving the community during a disaster also mesh with hospitals' missions, which are to provide quality patient care, service to the community and a safe working environment for employees. Wallace couldn't imagine any healthcare professional shying away from helping patients during a catastrophe for fear of liability.

Still, healthcare risk managers should keep an eye on the LaCoste lawsuit and others like it for possible lessons for their own preparedness plan. What's more, they should follow the deluge of headlines coming out of Haiti, should an event of that magnitude, god forbid, ever strike in their own communities.

"Emergency preparedness is an ongoing process," Wallace said. To help with this process, ECRI offers a free download of its risk analysis, "Emergency Preparedness."

January 18, 2010

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