Weigh­ing the cost of dis­as­ter

Trial could raise stakes for emer­gency plan­ning

Modern Healthcare - - The Week In Healthcare - Gregg Blesch

Ajury in New Orleans has been lis­ten­ing to tes­ti­mony in a wrong­ful death case against a hospi­tal where backup gen­er­a­tors sput­tered in the 2005 af­ter­math of Hur­ri­cane Ka­t­rina, and hos­pi­tals across the coun­try might want to lis­ten for what the jury de­cides.

De­pend­ing on the ver­dict and how much courts sub­se­quently rely on the de­ci­sion, the case could ex­pand the li­a­bil­ity of hos­pi­tals for their emer­gency plan­ning and per­for­mance.

The law­suit was brought by the fam­ily of Althea La­Coste, a 73-year-old woman who was ad­mit­ted the day be­fore the storm hit New Orleans and died af­ter her ven­ti­la­tor cut out along with the power sup­ply at Pendle­ton Memo­rial Methodist Hospi­tal be­cause a ground-floor fuel pump was flooded. The law­suit al­leges that the hospi­tal, op­er­ated by for-profit Uni­ver­sal Health Ser­vices, New Prus­sia, Pa., failed to pro­vide ad­e­quate emer­gency power and failed to pre­pare for a manda­tory evac­u­a­tion. Uni­ver­sal ex­ec­u­tives could not be reached for com­ment.

The case gained na­tional at­ten­tion in 2007 when the Louisiana Supreme Court de­cided the fam­ily could seek dam­ages un­der gen­eral li­a­bil­ity rather than lim­it­ing the law­suit to the realm of med­i­cal mal­prac­tice, which in Louisiana would have capped dam­ages at $500,000, with the hospi­tal op­er­a­tor re­spon­si­ble for a fifth of that sum and the bal­ance paid by the state Pa­tient’s Com­pen­sa­tion Fund, (Sept. 10, 2007, p. 12). “If you’re in a state with caps for mal­prac­tice cases, then a plain­tiff may be looking for al­ter­na­tive the­o­ries that get them out from un­der those caps,” said Anna Griz­zle, a mem­ber of the law firm Bass, Berry & Sims. “The idea has been planted,” she added. “The ques­tion is, will it ever take hold in a cir­cum­stance out­side of Ka­t­rina?”

The case would be more likely to have a broad ef­fect if the dis­as­ter in­volved were less cess­fully sue a hospi­tal for their gen­er­a­tors not start­ing, that alarms me a great deal,” said Ben Gon­za­les, di­rec­tor of risk man­age­ment for a con­sor­tium of 40 Mon­tana hos­pi­tals called the Mon­tana Health Net­work.

“ I sym­pa­thize with all the hos­pi­tals there with not be­ing able to pro­vide per­fec­tion,” said Gon­za­les, also a board mem­ber of the Amer­i­can So­ci­ety for Health­care Risk Man­age­ment.

Gon­za­les said he didn’t find it un­usual that plain­tiffs in a case such as the one against Pendle­ton Memo­rial would pur­sue mul­ti­ple le­gal tracks. He would ex­pect a law­suit to ar­gue both that a fa­cil­ity was gen­er­ally li­able for fail­ing to pro­vide ad­e­quate backup sys­tems as well as that the staff was not pre­pared to pro­vide ad­e­quate care in the event those sys­tems failed.

The New Orleans case is po­ten­tially trou­bling be­cause emer­gency events and backup sys­tems are un­pre­dictable, Gon­za­les said. “If you don’t have a backup plan, some neg­li­gence en­ters into the mix,” he added.

“You can­not plan for ev­ery­thing, but you can plan pretty com­pletely with known dis­as­ters that can hap­pen in your area,” Gon­za­les said. In Mon­tana, that in­cludes heat­ing the fuel for the gen­er­a­tors so they’ll start when the tem­per­a­ture plunges, as it did re­cently to 38 de­grees be­low zero in Cut Bank, Mont. And if the gen­er­a­tors or any other sys­tem fails for what­ever rea­son, Gon­za­les said, the clin­i­cal staff should have plans in place to con­tinue treat­ing pa­tients, and the fa­cil­ity should have agree­ments and plans to trans­fer pa­tients else­where.

Hur­ri­cane Ka­t­rina con­founded some of th­ese ba­sic tenets, and Sean Ahrens, a project man­ager with Aon sub­sidiary Schirmer En­gi­neer­ing, said he be­lieves health­care or­ga­ni­za­tions will have to fo­cus in­tently on their poli­cies and pro­ce­dures for en­dur­ing what he calls “wild­card events.”

“A ver­dict for the plain­tiff, re­gard­less of any of the cir­cum­stances, is go­ing to have far­reach­ing im­pli­ca­tions for all kinds of or­ga­ni­za­tions,” Ahrens said. “Un­for­tu­nately, we don’t know how th­ese things are go­ing to oc­cur be­fore they oc­cur.” A large earth­quake on the New Madrid fault in the Mid­west could wreak havoc across a wide swath of the coun­try, but there hasn’t been sig­nif­i­cant seis­mic ac­tiv­ity in the zone for nearly 200 years. “How do you pre­pare for that?”

Pendle­ton Memo­rial, like other New Orleans hos­pi­tals, was dev­as­tated by the flood­ing and chaos un­leashed by Hur­ri­cane Ka­t­rina and has been dor­mant ever since. The city’s Orleans Parish Hospi­tal Ser­vice District plans to buy the hospi­tal from UHS and re­open it fol­low­ing a $170 mil­lion ren­o­va­tion. << ex­traor­di­nary, Griz­zle sug­gested. “Courts are of­ten ret­i­cent to take a unique set of cir­cum­stances and to say, ‘We’re go­ing to es­tab­lish brand-new law here based on a once-in-a-life­time event,’ ” Griz­zle said.

The trial un­der way in Orleans Parish Civil District Court may turn on whether the jury con­cludes that hospi­tal leaders should have known that se­vere flood­ing would in­ca­pac­i­tate the fa­cil­ity’s emer­gency gen­er­a­tors.

Ac­cord­ing to pub­lished re­ports of the pro­ceed­ings, the hospi­tal’s CEO at the time, Larry Gra­ham, tes­ti­fied that he was un­aware of cor­re­spon­dence eval­u­at­ing such an event be­fore UHS took over in 2004. “The first ques­tion is, do we have gen­er­a­tors placed to ac­com­mo­date an emer­gency flood with 15 feet of wa­ter? The an­swer to that ques­tion is no,” a vice pres­i­dent re­port­edly wrote in 2002.

“If this case goes through and it’s won and sets a case prece­dent where a per­son can suc-

Pendle­ton Memo­rial Methodist Hospi­tal, shown here in Septem­ber 2005, is to be bought by the Orleans Parish Hospi­tal Ser­vice District and re­open fol­low­ing a $170 mil­lion ren­o­va­tion.

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