AARTC Extended Outline

1. ARRTC – 2012 Judgment – Proofing and Contracts
Spring, 2012
John R. Wible, J.D., General Counsel (Retired)
Alabama Department of Public Health
Extended Outline
Introduction
TUSCALOOSA, AL (RNN) – April 27, 2011.
A horrific storm system that killed more than 300 people in seven states across the
South is one of the worst the country has experienced in more than four decades.
In the 24-hour period that ended at 8 a.m. CT Thursday, 163 tornadoes had been
reported by eye witnesses. One of those, a mile-wide tornado that bisected Alabama,
killed more than 200 people in that state alone, barely missing a college campus
housing thousands of students, but leveling a large swatch of town with its destruction.
Officials are on the ground Thursday assessing the damage and delivering emergency
services and supplies to the victims of the storm.
Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228
people in 19 counties had died in Alabama.
A state of emergency was declared by the president shortly after the storms raged
through.
In his statement Wednesday, Obama said he told Alabama Gov. Robert Bentley, R-AL,
he had ordered the federal government to move swiftly in its emergency response.
"I approved his request for emergency Federal assistance, including search and rescue
assets," Obama said.
Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.
In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossing
boats from a store into an apartment complex, ripping holes in rooftops and destroying
a swath of restaurant establishments along a bustling street.
"I don't know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN.
"We're used to tornadoes here in Tuscaloosa. It's part of growing up. But when you
look at the path of destruction that's likely 5 to 7 miles long in an area half a mile to a
mile wide ... it's an amazing scene. There's parts of the city I don't recognize, and that's
someone that's lived here his entire life."
Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday,
search and rescue personnel looked for victims who could be buried beneath the
rubble.
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2. The massive tornado left Tuscaloosa's two hospitals swirling in activity. One, in direct
line of the storm, also suffered damage from the twister.
"We're estimating around 600 were treated at DCH Regional Medical Center," said Brad
Fisher, DCH spokesman.
Windows in several patient rooms as well as a waiting area were blown out there.
Fisher said the hospital was without water for about six hours, and power was only
restored in the wee hours of morning.
More than 100 patients per hour flooded their doors immediately after the storm, Fisher
said. The hospital admitted 92 people and reported five dead as of Thursday morning.
"Our numbers will increase today," Fisher said. "Business in the ED is steady, so we're
not done.
DCH Could Have Been Hit- What If ?????
Government Authority to Act in Emergencies: Model
At height of emergency – authority is at its peak. Broad discretion exists under both
state and federal laws for the executive – including police and public health officials – to
take actions deemed necessary to reduce imminent threats to life, property, and public
health and safety
When the crisis is brought under control – when there are no longer imminent threats
to life, property, and public health and safety requiring immediate action, the scope of
authority is reduced – as need to protect other values and individual rights, resume
normal roles.
Further, once immediate threats to life and to public health, safety, and property are
addressed, all those involved in a response will necessarily be faced with the challenge
of paying for the loss and damage that has been sustained.
So the role of the lawyer becomes more and more important as the emergency moves
from the crisis to the recovery phase.
Legal issues are still very important even at the height of a crisis – and choices made
during crisis moments can have a substantial impact on how losses and damages are
paid for after the event.
-The Eye of the Storm- What Really Happens in a Disaster
Disaster/Planning
Disaster -Any emergency that disrupts normal community function causing concern for
the safety of its citizens.
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3. Planning - Prime function to minimize the resulting loss of property, injuries, suffering
and death that accompanies a disaster.
Goal - to minimize resulting injuries, suffering, and provide continued quality care to
those patients in the hospital
So, what really happens?
How do people‘s relationships change?
Do people think and react differently?
Are the consequences the same as if you had reacted ―in the sunshine?‖
The ―Outback Steakhouse Question,‖ are there really ―no rules?‖
How can you ―rank‖ people in order or precedence to receive vaccine, ventilators
or treatment according to ethical principles?
Can you invoke ―altered standards of care?
What are the rights of staff to desert?
What happens in a disaster? CERT Training from FEMA tells us what we really already
know. Disaster survivors normally experience a range of psychological and physiological
reactions, the strength and type of which depend on several factors: prior experience
with the same or a similar event; intensity of the disruption; length of time that has
elapsed between the event occurrence and the present; individual feelings that there is
no escape, which sets the stage for panic; and the emotional strength of the individual.
Studies have shown that their reactions go through stages and that their reaction to
workers varies according to the stages from exuberant following of instructions to
disbelief and disgruntlement.
Psychologically, they may be subject to certain physiological and physiological
Symptoms including: irritability or anger; denial; loss of appetite; self-blame; blaming
others; mood swings; headaches; chest pain; isolation; withdrawal; diarrhea, stomach
pain; nausea; fear of recurrence; hyperactivity; feeling stunned, numb, or
overwhelmed; increase in alcohol or drug consumption; feeling helpless; nightmares;
concentration and memory problems; inability to sleep; sadness, depression, grief;
fatigue and low energy.
For our purposes, we know that disaster workers may go through many of the same
symptoms leading to the conclusion that in the end, they may become ―stressed out‖
and may make bad choices and the wrong decisions.
Effects on Victims and Staff
Psychological, physiological and physiological Symptoms:
Irritability or anger, blaming or denial, mood swings, fear of recurrence,
hyperactivity, feeling stunned, helpless, numb, or overwhelmed;
Loss of appetite and energy, headaches, chest pain, and fatigue;
Isolation, withdrawal, diarrhea, stomach pain, nausea;
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4. Increase in alcohol or drug consumption;
Nightmares and inability to sleep;
Concentration and memory problems;
Sadness, depression and grief;
All leading to BAD CHOICES
What if Power is Lost?
Also lost are:
Sewage / water systems
Lights/Cooling and heating elements
Elevators and automatic doors
Internal and external communications
Ability to track ID and patients
Usual mechanisms for internal communications may not function, establishing lines of
communications is vital. Key staff should meet at a designated time and location at
least once daily. Establish emergency communications area / EOC and a command
structure (NIMS). Establish a plan to communicate information to patients and families
and other facilities.
Other Contemplated Losses
Food, water and utensil supply
Shortages of meds, disposables and DME
o You should anticipate the most critical
o Personal Hygiene / Sanitary Supplies
o PPE needed
o Food, meds and water w/evacuees
Staff and Security losses
Handling waste: medical and other
Transportation and fuel
Identify reporting relationships in hospital's incident command structure and address
staff support needs:
Housing, transportation, family support needs, etc.
Protocol to identify various types of licensed independent practitioners
In advance, compile and maintain list of staff emergency contact information and
an acknowledgement of whether the individual will work during emergency
events or not.
In advance, establish and disseminate a call-in number for staff to obtain news
and information from the facility.
Establish which radio and television stations will broadcast information about the facility
in the event the call-in number is not working.
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5. Identify how hospital will obtain and replenish medications, supplies food, and water
and diesel fuel.
Identify how hospital will share such resources with area health care providers
How hospital will transport patients, their medications, supplies, clinical information,
equipment and staff to alternate site .
Clarify and identify roles of community security agencies for management of hazardous
waste and materials and provisions for radioactive, biological and chemical isolation and
decontamination. Plan for control of personnel within the facility, and vehicles that
access the facility during an emergency
Designate individual to monitor emergency broadcasts/alerts via battery operated TV or
radio.
Consider what secondary communication methods are available: Cell phones, text, Ham
Communication with vendors and essential service providers.
Internet – remember that even if you have power and internet connection, regulatory
agencies may not.
Notifying external authorities, employees, staff, patients and families that emergency
response measures have been initiated is important.
Communications with area health care organizations, regarding contact information,
resources and assets that are available to be shared
Communications about patient names with area health care entities and third parties
State Department of Health, Police, FBI, etc. must also be maintained.
Avenues for Liability
Federal Issues
Criminal Issues
Administrative Issues
Civil Issues
o Torts
o Contracts
Federal Law Causes of Action
1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation Act
HIPAA; EMTALA; FMLA; FLSA (wage and hour); OSHA; and FDA.
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6. The Centers for Medicare and Medicaid Services (CMS,) the Inspector General
of the United States Department of Health and Human Services (IG/HHS,) the
Department of Justice, Medicare and Medicaid Fraud and Abuse Division
(DOJ) and any other combination of alphabet-soup regulatory agencies at
the federal and state level when they either refuse to pay you or threaten to
investigate you for fraud.
Affected federal laws can include: Americans with Disabilities Act, Rehabilitation Act of
1973, Section 504, EMTALA, HIPAA, Pure Food, Drug and Cosmetic Acts (medicines and
medical devices,) the "Common Rule" involving research with human subjects, Wage
and
Hour (FLSA), "80 hour a week rule for medical residents" rule, OSHA, CMS
reimbursement under Medicare and Medicaid and the Stafford Act - to name a few.
HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of
2009
The ―Golden Rule of Documentation:‖ If it ain‘t wrote down it didn‘t happen! The way it
is wrote down is the way it happened regardless of the way it happened!
Confidentiality- Access to Records
General rule – (Privacy Rule) All patient information is strictly confidential. You must
maintain patient information confidential outside the necessary situation. However –
exceptions in emergency situations- 45 CFR 164.512 – emergency personnel and law
enforcement.
Imperatives for Protecting PHI
Improvements in health care and community health require responsible sharing of some
PHI. In the absence of privacy protections, patients and others may avoid some clinical,
public health and research interventions to their detriment. Individual privacy
protections must balance with legitimate community uses of PHI, i.e., health research
and public health.
Methods to Avoid Liability – DCH suggestions
Have only one or two voices to media and the public, IE., thousands of calls
Train employees to route pts. to triage regardless of ingress
Use AIMS system or your own system for pt. tracking (names only) external to
your EMR tied to central clearing house
Follow up pts later with your EMR
Avoid inappropriate behaviors
Participate in QA/QI and Con-Ed programs
Know and follow policies , protocols, procedures, laws and regulations
Strictly adhere to training protocols
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7. Strictly follow instructions of medical direction and superiors
Train employees to funnel all pts. To a single or one of specified triage sites
Use AIMS system or your own system for pt. tracking (names only) external to
your EMR tied to central clearing house. Follow up pts later with your EMR.
o It only IDs pt. and tells status. No PHI to inadvertently release
o Hospital spokes person or receptions on phone have access to this system
and can locate pts. For press and family members w/o giving PHI.
o Technically, even the name of the patients is PHI, but that‘s minor.
o Have only one or two voices to media and the public, IE., thousands of
calls
Train employees to route pts. to triage regardless of ingress
Document, document, document
Disaster Applicability - DHHS Says:
Responding agencies will need to get PHI to respond to emergencies
Therefore a covered entity can disclose PHI to emergency authorities in such an event.
Attempt to have prepared systems that minimize non-emergency disclosures
See 45 CFR 164.512(b) public health activities
EMTALA - Section 1867, Social Security Act
Must triage and stabilize then treat or transfer
What if you are in a disaster?
o DHC found the Statewide Trauma System to be very helpful
o Plan to set up emergency triage sub-stations
o Have transfer agreements – where and how
 Ambulances – is there prohibitive (exclusive) ordinance?
 ADPH bus kits
If in a true disaster, unlikely HHS will pursue
Evacuation Plan – Have One - And Stick to It
Does it violate EMTALA?
Plan w/ other facilities to take pts.
Plan w/city, county and schools to use vehicles and (importantly) drivers
o N.O. didn‘t evacuate in part because though they had busses, they didn‘t
have drivers who had deserted
Tenet-Memorial Hospital (N.O) settled suit involving evacuation plan
OSHA in a Disaster – Plan!
Have pre-emergency drills implementing plan, using plan & ICS System
Establish lines of authority and communication between incident site and hospital
personnel.
Designate disaster team including ED MDs, nurses, aides and supp. pers. w/PPE
Designate alternate sites
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8. Post-emergency critique of the hospital's emergency response – OSHA Pub. 3152
(1997)
Fair Labor Standards Act
Plan should include use of reserves and time off where possible
Time off may be given later or
Overtime pay required for non-exempt employees
If you have a Gov.‘s Proclamation, a Stafford Act declaration and are executing
your approved disaster plan, it is possible that you may be designated a state
entity and eligible for 80% reimbursement
Pure Food, Drug & Cosmetic Act
Be careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or
pharmacist. Plan a work around of this. Work with city to have pre-established aid
stations w/pharmacist coverage. Pharmacists can be obtained and dispatched through
ADPH volunteer network.
Licensure Issues – Bed Capacity
Code of Ala.1975 Chapter 21 of Title 22 requires you to be designated with maximum
bed capacity. This may be exceeded in emergency by contacting ADPH Bureau of
Health Provider Standards for a temporary waiver. Probably can be done through AIMS
This will not be your biggest problem.
The Joint Commission (TJC)
On Nov. 24, 2008, TJC imposed requirements related to emergency management
The hospital has Emergency Operations Plan. The hospital engages in planning
activities prior to developing its written EOP. The hospital prepares for how it will:
communicate, manage resources, provide security, staff, and grant privileges to other
practitioners during emergencies.
Criminal Complaints
Trespass
Assaults and Batteries
Theft of property
Conversion
Offenses involving sexual misconduct
Civil Liability, Lawsuits, Defenses and Immunities - Torts
An actionable wrong under the law
o Negligent torts
o Intentional torts
o Strict liability -Probably not a concern here
Recoverable in a civil action against you
Filed in Circuit Court
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9. The plaintiff wants money damages
Types of Torts
Malpractice and professional liability
General tort liability – negligence for an act or omission
o Economic loss
o Non-economic loss
Gross neg., wanton misconduct, bad faith
Vicarious liability and Respondeat superior
Negligent recruitment/training/supervision
Premises Liability (slip and fall, glass in beans)
Negligence
The failure to act or perform in a particular situation as any other reasonable prudent
dispatcher with similar training would act under the same or similar circumstances.
Negligence is defined using different words in different states. It is generally defined in
the state‘s case law rather than in statutory law. But however it is defined, negligence
comes down to a failure to use reasonable care under the circumstances, or to act as a
reasonable person would under the same circumstances. The operative word is
―reasonable.‖
The standard is essentially the same for professionals. The difference is that the
―reasonable person‖ that a professional is compared to is another professional with
similar background and expertise.
In both professional and general liability claims, bad results alone are not enough to
support a claim for negligence. There must also be a lack of reasonable care.
The elements of a negligence claim are also a matter of state common law.
They are fairly similar among the states, but there may be some differences so you
need to be familiar with your state‘s law. Basically they come down to a duty to use
due care under the circumstances, breach of that duty, and resulting damages.
The universe of activities that can expose a program as diverse as a MRC to a
negligence claim is limited only by the imagination of very creative plaintiff‘s attorneys.
Two important sources of liability exposure for a MRC would be:
• The operation of motor vehicles to transport people or supplies
• The hospital‘s inadequate internal procedures for selecting, assigning and
monitoring employees.
The consequences of negligent acts that result in damage will generally be injury or
property damage.
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10. Compensatory damages are the remedy normally awarded by a court to the injured
party. Punitive damages may also be awarded if the defendant‘s negligence exceeds
―normal‖ negligence according to the state‘s specific requirements.
Negligent torts arise from the failure to use reasonable care under the circumstances,
causing recoverable damages. The ―reasonable man‖ test‖ is applied. Bad results aren‘t
enough . Professional liability – failure to use the degree of skill and care expected of a
person in the profession
Negligent Torts Examined
Negligent torts arise from the failure to use reasonable care under the circumstances,
causing recoverable damages. The ―reasonable man‖ test‖ is applied. Bad results aren‘t
enough.
Professional liability – failure to use the degree of skill and care expected of a person in
the profession.
Proving Negligence
―Intent to cause harm‖ is not required
Four things are required to be proved
o Duty
o Breach of the duty
o Injury or damage
o Proximate cause
―Punnies” Award for:
Gross negligence - reckless disregard of the consequences to the safety or property of
another or willful acts - intentional, conscious and directed toward achieving a purpose
Wanton acts - grossly negligent to the extent of being recklessly
unconcerned with the safety of people or property
Reckless behavior–similar to gross negligence
Punitive damages are awarded for wrongful acts that are so severe that the law
imposes additional civil damages as a deterrent. Punitive damages are awarded in
addition to compensatory damages, and are not related to the injured party‘s
actual losses.
To recover punitive damages, the injured party generally must claim gross negligence,
willful or wanton acts, or reckless behavior, depending on the requirements of the
state‘s law.
It is important to know what these terms mean because the federal Volunteer
Protection Act, as well as many state volunteer protection acts, do not protect
volunteers against wrongful acts that rise to this level. It is understandable that
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11. legislatures do not want to exempt volunteers from responsibility for this level of
wrongful act. But at the same time, this exemption opens a big door in the
protection awarded hospitals.
Exceeding the Scope of Practice
Another important liability concept for professional
Professional‘s is scope of practice. One general definition of Scope of practice is on this
slide: ―The range of professional activities that a licensed professional is permitted to
perform under a state licensing statute, further defined by the professional‘s experience
and training.‖
So there are two sets of constraints on any professional‘s scope of practice: the
licensing statute and the professional‘s own demonstrated abilities. Some states are
more specific than others, so it certainly pays to know what your state statute says.
Standard of Care
Establishing – can be set by statute or by governmental rule or by the court
Measures of determining the standard
Behavior is compared with others with similar training and experience
Compared w/ locally accepted standards
Compared to statutes or administrative rules
Compared with professional standards published nationally
I have a plan to alter the std. in emergency. Involves the Governor‘s proclamation of a
state of disaster and the adoption of your hospital disaster plan.
Breach of the Standard of Care
Another important liability concept is professional standard of care, which is basically
just the ―reasonable person‖ negligence standard modified for a professional services
environment . Standard liability issues center around whether the hospital and its
professionals have maintained the ―standard of care.‖ See Code of Ala.1975 §6-5-548 .
See also Humana Medical Corporation v. Traffanstedt, 597 So. 2d 667 (Ala. 1992
Malpractice: professional misconduct or demonstration of an unreasonable lack of skill
with the result of injury, loss, or damage to the patient.
Med-Mal is subject to a special statute. See Code of Ala. 1975 §§ 6-5-480, et seq. and
Code of Ala. 1975 §§ 6-2-38 and 6-5-410. Hospitals are covered as well.
Corporate or Group Liability
Corporate Negligence
Vicarious liability/Respondeat superior
Negligent recruitment/training /supervision
Premises liability
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12. Premises Liability–“Shelterees”
Plan for ―sheltrees‖ – uninjured persons from neighborhood or brought by LE
Some unattended pediatrics, some geriatric w/attendant & inherent problems
Plan for minimum of 8 hours until ARC can open shelters, then plan for transport
there
Plan for sheteree animals , bites & ETC.
Prevent thefts – get supp. lights and security
Negligent Hiring, Training, Supervision or Retention
An employer can also be responsible for the acts of employees on grounds of negligent
hiring, supervision or retention. This is direct liability – the ―employer‖ is liable for its
own failure to use due care in the employment process. It basically holds the
employer responsible for negligently placing an Employee in a position to do harm to
others.
Direct liability of an employer for acts or omissions of employees based on the
employer‘s failure to use reasonable care in:
Selecting workers
Training them
Supervising their work, and
Terminating their services when necessary
―No good deed goes unpunished‖
The ―slack‖ you give your employee may be the rope that hangs you.
Respondeat Superior
The master is responsible for the acts or omissions of his/her servant committed ―within
the scope and line of duty‖ when not on a ―frolic and detour.‖ The hospital is
responsible for the acts of personnel in the line of duty, though not ―independent
contractors.‖ Doctor is responsible for the nurse under his/her control.
Failure to Plan - Three possibilities for negligence liability:
Absence of a plan, Inadequate plan, Failure to follow plan.
Reasonable care: probability of an event, gravity of potential injury, and burden
in adequate precaution –: probability of an event, gravity of potential injury, and
burden in adequate precaution – See Lacoste v. Pendleton Methodist Hospital.
Supreme Court of Louisiana. 2006
Punitive Damages – wanton and willful misconduct
Failure to Plan: I would submit that the standard is already set and duty to plan is
established.
Planning required by Joint Commission
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13. Planning required by NIMS
Planning encouraged and facilitated by ADPH
Plan a part of the State EOP and invoked by order of the Governor in an event.
Judgment Proofing and defenses
There is always some who will want to sue you, and always a lawyer who will take the
case. So, there‘s no such thing as being ―law-suit proof,‖ rather, we speak in terms of
―judgment proof
Two Very Important Ques.
Can you make the hard calls?
How much risk are you willing to plan to take? Don‘t be deciding in the middle of
the disaster, think it out beforehand with advice from insurance agent and
lawyer.
Making Hard Calls - Principles
"To Tell the Truth, the Whole truth and nothing but the Truth" -We must first
study and learn the absolute truths and never vary from them. If we devote our total
allegiance to the truth, we will be free to make ethical decisions without fear of making
a mistake, (not without making mistakes, but without fear of making mistakes) and
without fear of the consequences because, if we have followed the truth, we are not
responsible for the consequences, the truth is responsible for the consequences. It is
when we do not follow the truth, that we transfer the responsibility for failure to
ourselves.
―There is absolute truth. In the planning process, there are certain rules, facts and
principles that will have to be applied. It is your duty to know these ―truths..‖ before
you start planning.
• The "No Delta Principle"- Ethical principles do not change no matter the
situation, only the application of them. Moral Relativism is a myth.
• ―Free at last, free at last!” You will know the truth and the truth shall make
you free.
• ―The Principle of the Plumbline" - In the storm, we make our decisions by
applying the plumb line and level of the truth.
•
"We'll Sing in the Sunshine"- To the extent practicable, we pre-plan disaster
decisions in the sunshine.
―Casper the Friendly Ghost,” – Transparency and accountability are twins.
“You‟re a pane‖ -Transparency - To the extent possible, decisions should be made not
only in the sunshine temporally, by also visually and influentially as well.
• ―No Accountability Vacuum.” No matter how well intentioned we start out, if
there is an accountability vacuum, we are strongly tempted to cut corners.
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14. • "It's Not About Me." We need to adopt the idea that life is not about me.
That frees us from worrying about ourselves and frees us to make these plumb
and square decisions.
―The Nike Principle – We are all familiar with Nike‘s famous slogan, ―Just Do It.‖ Just
do it NOW. Resist the urge to procrastinate.
• Focus, please - The danger with ―just doing it, is that one can become like a
charging rhinoceros.
• Truth or Consequences Everything we do has consequences. We must be
aware of that fact and must be aware of the ―Law of Unintended Consequences.‖
[However, perhaps the greater danger for the government planner is not that he
or she doesn‘t think through the possible consequences, but rather that he so
over thinks the consequences that he is paralyzed in the decision-making
process. Hence, back to the main bullet – Just Do It!
Planning -“Bryant‟s Rule” - Patton‟s Corollary
Have a Plan, work your Plan, plan for the Unexpected. Plans must be simple and
flexible, made by the people who are going to execute them.
Plan “Beyond Your Wildest Dreams”
Plan must be beyond your ―wildest dreams.‖
o -Janet Teer, General Counsel DCH System
Expand your concept of ―disaster,‖ not 10-100 pts in ED but 800-1500 anywhere
Get a team on the planning process w/deadlines
Plan in accord with TJC
Approved by local EMA and ADPH
Triage Planning - Whatever method is decided upon, may I offer several points:
It needs to be decided now. Have a plan now. It is a moral failure to put off such a
momentous decision until there is no time to reach a good decision. University of
Pittsburgh‘s Professor Tabery urges the use of a Triage Review Board including an
administrator, physicians, nurses, clergy, ethicists, and community persons at large to
oversee the use of triage on a very frequent basis for practical as well as ethical
reasons including the need to ―engage the public‖ at pre, during and post stages of the
pandemic or disaster. At this pointing the debate, the method to be used, if not agreed
upon (and that is entirely possible that it will not be agreed upon,) it should at least be
formulated with wide input.
Professor Tabery‘s thoughts do have much to lend themselves to the utilitarian. He
states that a good plan needs a Triage Officer – the initial person making these life and
death decisions, needs to be a senior and well-trained individual, not a neophyte.
Triage is not simple, it requires great skill, a certain ―seasoned hardness‖ and
perseverance. It should be constantly reviewed during the implementation phase. The
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15. triage officer should be debriefed periodically by superiors and the whole process
looked at on an on-going basis by the Triage Review Board.
Modern Disaster Triage
Professor James Tabery states of the ethics of triage in disaster situations that there
has been or is in the process of becoming switch from standard medical ethics with the
primary focus on individual autonomy to an ethics of public health with a primary focus
on the health of the community, with the overarching goal being to minimize morbidity
and mortality during the pandemic. Professor Tabery then takes the Bentham/Kant
debate into the 21st Century in looking at models for triage: Utilitarian v. Egalitarian. In
other words, given scarce resources, do the workers address the needs from the basis
of for whom they can do the most good, or to those who are in greatest need?
Specific Template for Disaster Planning-Vent. Triage ESF 8
ADPH develops a template for disaster planning and resource allocation, the Ventilator
Triage. We recommend you adopt it as your plan. It may give state agency immunity.
See http://www.adph.org/CEP/assets/VENTTRIAGE.pdf
Statute of Limitations
Set time period for injured party to file lawsuit
Torts -Generally 2 years
Includes wrongful death, PI, and A & B
Trespass – 6 years
Contracts – Generally 6 years
Could include personal injury under contract
See more later
S/L – Med Mal more or less 4 years. All actions against health care providers must be
commenced within two years after the act or omission giving rise to the claim;
provided, that if the cause of action is not discovered and could not reasonably have
been discovered within the two-year period, then the action may be commenced within
six months from the date of such discovery or the date of learning of facts that would
reasonably lead to such discovery, whichever is earlier. Ala. Code § 6-5-482 (1993).
Although this statute of limitations is subject to tolling for minority or disability, in no
event may an action be brought more than four years after the act or omission, except
that a minor who is under the age of four at the time of the act or omission accrues
has until his eighth birthday to commence an action. Id. The constitutionality of the
statute has been upheld. Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala. 1986). A
wrongful death action must be brought within two years after the decedent's death.
Ala. Code §§ 6-2-38 and 6-5-410 (1993).
This "statute of creation" is not subject to any tolling provisions and applies in wrongful
death cases even if the cause of death is medical malpractice. Cofer v. Ensor, 473
So. 2d 984 (Ala. 1985); McMickens v. Waldorp, 406 So. 2d 867 (Ala. 1981)
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16. Expert Testimony - "In medical malpractice cases, the plaintiff must prove negligence
through the use of expert testimony, unless an understanding of the doctor's alleged
lack of due care or skill requires only common knowledge or experience.― Monk v.
Vesely, 525 So. 2d 1364, 1365 (Ala. 1988). The exception applies only to such
situations as a foreign object left after surgery or an injury remote from the part of
the body being treated. Dews v. Mobile Infirmary Ass'n, 659 So. 2d 61 (Ala. 1995). A
health care provider may testify as an expert witness in any action against another
health care provider based on a breach of the standard of care only if he or she is
"similarly situated," as defined by statute. Ala. Code § 6-5-548 (Supp. 1997).
This means, in part, that expert witnesses against a physician accused of negligence
must be certified in the same specialty and must have practiced within the previous
year. Id.; Malcolm v. King, 686 So. 2d 231 (Ala.1996).
Damage Caps for HCAs
Code of Ala.1975 § 22-21-318(2) caps damages against a ―health care authority‖ at
$100,000. This does not apply to a for-profit hospital nor does it apply to a purely
county or municipal owned hospital.
Malpractice Insurance
Covers any [costs & damages the physician/ employer/ employee must pay if
(s)he sued for malpractice and loses [to policy limits]
All licensed and certified medical professionals should carry malpractice
insurance or have hospital provided
Can be an expensive type of insurance for some disciplines
MDs can be thousands or even tens of thousands
EMTs around $200 per year through NAEMT
Nurses around $200 - $400 depending on coverage
Hospital carries general liability and D & O
Types of Med-Mal Insurance
Claims-made insurance - covers insured party for claims made only during the time
period policy was in effect
Occurrence insurance - covers the insured party for all injuries and incidents that
occurred while policy was in effect regardless of when claim is made
Limits – Usually $1-3 Million including defense costs
Hospital Insurance
In addition to med-mal, you should cover premises liability – Agree w/ co. & know what
is (in)(ex)cluded. Ask questions. We are in a ―soft market,‖ therefore you may be able
to negotiate additional coverages w/ Pro Assurance, Coastal or McNeary. Consider
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17. coverage for HHS/CMS civil penalties; Have high $ ―umbrella‖ gen‘l liability coverage.
This may have to be re-insured.
Goals -Altered Standards of Care
The New York State Departments of Agriculture and Environmental
Conservation estimate that in a ―moderate‖ pandemic influenza event, patients will
most likely utilize:
• 63% of hospital bed capacity;
• 125% of intensive care capacity; and
• 65% of hospital ventilator capacity.
Thus, in a discussion of the ethical treatment of patients, we would be in a scarce
resource situation; this leads to a discussion of the ethical and legal basis for Altered
Standards of Care. When is it permissible from an ethical and legal standpoint to
provide less than the care normally expected or held to be what is referred to in both
the medical and legal professions as the standard of care?‖
When it permissible from an ethical and legal standpoint to provide less than the care
normally pr traditionally expected or held to be what is referred to in both the medical
and legal professions as the ―standard of care‖?
Healthcare Research and Quality (AHRQ) and the Office of the Assistant Secretary for
Public Health Emergency Preparedness (OASPHEP) within the U.S. Department of
Health and Human Services (HHS) convened a blue ribbon working group. In their
report, they state the following finding, inter alia.
• The goal of an organized and coordinated response to a mass casualty event
should be to maximize the number of lives saved.
• Changes in the usual standards of health and medical care will be necessary to
allocate scarce resources in a different manner to save as many lives as possible.
• The basis for allocating health and medical resources in a mass casualty event
must be fair and clinically sound.
• The process for making these decisions should be transparent and judged by the
public to be fair.
• Protocols for triage need to be flexible enough to change as the size of a mass
casualty event grows.
• Staff concerns must be addressed pre-event
Focus Change - Altered Standards
Critical : Focus Changes from doing to best for each patient to maximizing the
most lives saved. The system becomes the pt.
Affect current patients already in hospital
The scope of practice changes
Equipment, meds and supplies rationed
Record-keeping changes
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18. The New York committee reports that in such scenarios, the focus will have to change
from doing to best for each patient to maximizing the most lives saved. They recognize
that such consideration will affect current patients already in the hospital for other, non-
related illnesses and injuries. They also recognize that the usual scope practice
standards will of necessity change, equipment and supplies will need to be rationed,
documentation standards will change, and [basically, bodies will pile up.]
Emergency Management -Under Code of Ala.1975, § 31-9-2:
Governor proclaims an ―emergency‖ defined as:
Enemy attack, sabotage
or ―other hostile action;‖
Fire, flood and ―other natural causes.‖
The definition is broad enough to cover B/T incidents or naturally occurring events like
hurricanes and tornadoes.
Amendments add ―Public Health Emergency‖ - Under HB 107, ―Public health emergency,‖ is
defined as:
―an occurrence or imminent threat of an illness or health condition, caused by
Bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious
agent or biological toxin, that poses a substantial risk of a significant number of
human fatalities or incidents of permanent or long-term disability. Such illness or
health condition includes, but is not limited to, an illness or health condition
resulting from a national disaster.‖
Governor Proclaimed Emergency
This would activate the State Emergency Operations Plan (EOP). Specifically activation
of Tab A (Pandemic Influenza) to Incident Annex A (Biological Incident Annex) . Due to
the complex nature, the Department of Public Health has developed different
operational plans to deal with mass distribution of countermeasures and pandemic
influenza. The two plans are the Strategic National Stockpile Plan (SNS Plan) and the
Pandemic Influenza Operational Plan (PI Plan). These plans can be utilized together or
separately. They complement each other, and serve as the operational response to a
biological incident in the State of Alabama. The Alabama Emergency Management
Agency will activate the State Emergency Operations Center for biological incidents as
required by following the same process and protocol as for any other disaster impacting
the state.
A unified command will be established between agencies such as the Alabama
Emergency Management Agency, Alabama Department of Public Health, Alabama
Department of Homeland Security, Alabama Department of Public Safety, Alabama
Department of Agriculture and Industries and/or other agencies as the situation
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19. requires. ADPH is responsible for Emergency Support Function (ESF) #8 —Public
Health and Medical Services.
Governor‟s Powers
In addition to those earlier listed, §31-9-6 also provides authority to:
Make orders, rules and regulations;
To utilize all state employees;
To utilize any state or local officers or agencies, granting state officer immunity
to such, including volunteers
Personal Liability Protections. Code of Ala, 1975 §31-9-16 provides that:
Except for willful misconduct, gross negligence or bad faith, any ―emergency
management worker‖ (EMW) is granted state officer immunity. Requirements for
licenses to practice do NOT apply. ―Emergency worker‖ is anyone helping out whether
paid or not. The business or corp. is also an EMW
Property Protections - § 31-9-17 provides similar liability protections apply to those
permitting the state to use their real property
Volunteers
TJC MS 4.110 - Disaster privileges may be granted when the hospital's emergency
management plan has been activated and the hospital cannot manage immediate
patient care needs:
Bylaws clearly delineate who may grant disaster or emergency privileges
Medical Staff identifies how it will oversee volunteer independent staff who
receive disaster privileges and how they will be identified
Hospital complies with Joint Commission "protocol" for issuance of disaster
privileges to independent license practitioners
Consider using ADPH volunteer registry to have volunteers pre-vetted and
qualified
Also, such volunteers may be ―state agents‖ and thus subject to immunity.
Further state agents do not transfer liability to the agency
The ―guy who shows up with a chainsaw‖ should be routed to the Red Cross.
The Volunteer Service Act
§ 6-5-336. Volunteers Defined.
(a) This section shall be known as "The Volunteer Service Act.―
VOLUNTEER. A person performing services for a nonprofit organization, a nonprofit
corporation, a hospital, or a governmental entity without compensation, other than
reimbursement for actual expenses incurred. The term includes a volunteer serving as a
director, officer, trustee, or direct service volunteer.
A person performing services for:
a nonprofit organization or corporation
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20. any hospital or a governmental entity
without compensation
The Volunteer Service Act
(d) Any volunteer shall be immune from civil liability in any action on the basis of any
act or omission of a volunteer resulting in damage or injury if:
(1) The volunteer was acting in good faith and within the scope of such volunteer's
official functions and duties for a nonprofit organization, a nonprofit corporation,
hospital, or a governmental entity; and
(2) The damage or injury was not caused by willful or wanton misconduct by such
volunteer.
(e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for
civil damages based upon the negligent act or omission of a volunteer, proof of such act
or omission shall be sufficient to establish the responsibility of the organization therefor
under the doctrine of "respondeat superior," notwithstanding the immunity granted to
the volunteer with respect to any act or omission included under subsection (d).
Contracts
What is a Contract
Simply, an exchange of mutual promises, written or oral to do legal acts.
Types of Instruments
Contracts
Grants
Be n e f it
Agreements
Amendments
Purchase Orders
Elements of a contract
Offer,
Acceptance,
Consideration
Detrimental Reliance
―Boiler plate‖
―In writing‖
Contract Suggestion - DCH
Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged
kits, like ―push-pak,‖ for main and alternate sites. Make sure supplier contracts and
contractors have connections to get your supplies, like generators, in a hurry and can
handle volume. Make sure it‘s in writing or at least followed up with a letter stating your
understanding of the verbal agreement
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21. Agreements
MOUs - involves no payment of money
MOAs – Other party pays ADPH
IMOUs – Intra-departmental agreements
Letter Agreements – miscellaneous items
Amendments – Use the same formalities as the instrument which it amends and the
same process as the instrument which it amends.
Mutual Aid: Key Characteristics
Mutual aid can cover a wide range of activities and arrangements between numerous
different levels of government. Frequently, mutual aid agreements are not only in
writing but also authorized by special legislation.
For example, in 2004 Congress enacted special legislation to facilitate mutual aid
between jurisdictions in the National Capital Region; these arrangements had been
hindered by the significant differences in tort liability in the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458,
__ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF
2004). The statutory solution here was to provide that the law and court system of a
responder‘s home jurisdiction would apply to lawsuits against the responder and his or
her employing jurisdiction.
A key aspect of mutual aid agreements is that they do not require that assistance be
provided. No government can commit to send resources elsewhere in advance without
knowing whether those resources are required to handle its own problems.
Mutual Aid: Key Characteristics
Some mutual aid agreements do not provide for compensation. These agreements
normally cover small scale incidents requiring limited resources and a relatively short
duration. For emergency response, however, the cost of providing extensive resources
over a significant period of time becomes very significant.
If the activities performed under a mutual aid agreement are ―emergency measures‖
that would otherwise be eligible for federal reimbursement under the Stafford Act, then
the costs charged under the mutual aid agreement would also be reimbursable – but
only if the mutual aid agreement is in writing and requires compensation. See FEMA
Public Assistance Policy No. 9523.6, ―Mutual Aid Agreements for Public Assistance.‖
(September 22, 2004).
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22. Litigation over mutual aid agreements is rare. Most cases have involved employees
injured during a response, as a result of legal uncertainty over whether workman‘s
compensation limitations applied and which jurisdiction was responsible.
In the absence of dispute resolution provisions in the mutual aid agreement, disputes
between requesting and responding jurisdictions may be litigated in a court with
jurisdiction over the parties and subject matter. For example, original jurisdiction over
disputes between states is in the United States Supreme Court.
EMAC provides that any employee of responding jurisdiction is deemed to be licensed in
the requesting jurisdiction.
Intrastate Mutual Aid
North Alabama Mutual Aid Compact:
Lauderdale, Colbert, Franklin, Marion, Lawrence, Winston, Walker, Limestone,
Morgan, Cullman, Blount, Madison, Marshall, Jackson, DeKalb, Cherokee
South Alabama Mutual Aid Compact:
Baldwin, Butler, Choctaw, Clarke, Coffee, Conecuh, Covington, Crenshaw, Dale,
Dallas, Geneva, Henry, Houston, Lowndes, Marengo, Monroe, Montgomery, Pickens,
Pike, Sumter, Tallapoosa, Washington, Wilcox
National Emergency Management Association has developed a Model Intrastate Mutual
Aid Agreement to assist states in reviewing their existing legislation.
http://emacweb.org/docs/NEMA%20Proposed%20Intrastate%20Model-Final.pdf
Per that document- 27 States had formal agreements as of February 2004
Those states include: AL, AZ, CT, FL, GA, HI, IL, IN, IA, LA, MD, MI, MO, MS,NE, NH,
NC, OH, OR, RI, SC, TX, VT.
5 Additional states had proposed compacts in their legislature during February 2004,
including: AL, CO, KY, NV, and WI
An additional 4 states & 1 territory were drafting a proposal before their legislature, as
of 2/04 including: DE, NM, NY, OK & VI
Intrastate Compact applies to mutual aid provided by governmental entities
within the state (for example: city to city; county to city, county to county, etc.)
Draft ‗Model Intrastate Mutual Aid Agreement‘ available to states
When enacted, assures a written mutual aid agreement available covering local
communities when governor declares emergency
Includes compensation provisions
The Urban Lawyer is publishing an extensive article on intergovernmental
agreements and liability concerns in early 2005.
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23. The MOU- Alabama Prospective
Alabama Hospital Mutual Aid MOU (59 sigs)- See
http://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.doc
MOUs define rights and responsibilities only:
Parties: ADPH, hospitals, other providers, responder communities, other regional
parties
Disaster – proclaimed, declared or not
Limitations – players and resources
The need: identifying & providing resources, personnel and & care and moving
patients
The MOU - Purpose
• Purpose - the Network was created and organized to identify resources to
support the coordination of local, state, and multi-state resources to respond to
an emergency or disaster, both natural and man-made, that exceed the
resources of one or more Network Participants.
• The Network identifies, utilizes, and participates with a variety of health care
facilities including pediatric, specialty care, tertiary care and general hospitals as
well as other resource centers such as private health care providers and clinics,
and home health agencies;
• This agreement and relationship among Network Participants is intended to
augment, not replace, each Network Participant's emergency operations plan
(EOP). This document does not replace but rather supplements the governing
law, rules and regulations and procedures and protocols governing interaction
with, and among, other organizations during a disaster (e.g., EOP of the State,
emergency management agencies, law enforcement agencies, the local
emergency medical services, state and local public health departments, fire
departments, and nongovernment disaster response agencies (NGO) such as the
American Red Cross.
MOU – Not Obligatory
No party is legally obligated to accept patients or send staff, supplies or resources when
to do so would compromise its local service mission. This agreement is entered into
voluntarily and the Network Participants are not obligated to offer any support or
assistance; however, Network Participants agree, in the event of a Disaster, to use
reasonable efforts to make pediatric clinical staff, medical and general supplies,
including pharmaceuticals, and biomedical equipment (including, but not limited to
ventilators, monitors and infusion pumps) available to each another. Each Network
Participant shall be entitled to use its reasonable judgment regarding the type and
amount of staff, supplies and equipment it can provide without adversely affecting its
own ability to provide essential services.
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24. However, participants agree to try to assist and to advise of availability of resources
through Incident Management Systems
The purpose is to coordinate sending and receiving of patients, staff, equipment, staff
and resources through the EOCs
MOU – Normal EMA Chain
Requests for mutual assistance follow the normal process of requesting assistance
through the local Emergency Management Agency and, if appropriate, the local
Emergency Management Agency will escalate the request to the appropriate Region
state Emergency Management Agency and if needed the state Emergency Management
Agency may escalate requests at the Federal level.
The Network, through the Emergency Operations Centers will coordinate efforts
between Network Participants and Region state Emergency Operations Centers to
ensure appropriate transfer of pediatric patients and optimal utilization of pediatric
health care resources within the Region.
Each Network Participant signatory will identify a point of contact who is familiar with
the Network, hereinafter known as a ―Designated Representative,‖ who has operational
authority to act as a liaison with the Network during any revisions of this Network
Memorandum of Understanding and to communicate with the Network and the
appropriate individuals within the representative‘s own organization in the event of a
Disaster. The Designated Representative or delegate individual shall attend meetings
and conferences scheduled by the Network to discuss issues related to this Network
and if needed, to revise the Network Memorandum of Understanding. The Designated
Representative or delegated individual shall act as a liaison with representatives of the
Network Participants in the event of a Disaster.
The Network Participants agree to communicate and coordinate their response efforts
via their Designated Representatives who have operational authority to commit the
resources of the Participant as specified in the Participant Emergency Operations Plan.
In the event of a Disaster, Network Participants agree to inform their non-employee
medical staff members of any requests for assistance and offer them the opportunity to
volunteer their professional services. Network Participants shall cooperate with each
other to provide in a timely manner the information necessary to verify employment
status, licensure, training and other information necessary in order for such volunteers
to receive emergency credentials.
MOU Reimbursement, Non-Exclusivity, Withdrawal
Network Participants cannot guarantee reimbursement for pediatric medical assistance,
facilities, supplies or other types of support. However, to the extent that
reimbursement may be available, every effort will be made to obtain such
reimbursement through federal or other monies as they become available as long as
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25. the Network Participant is not reimbursed for the pediatric medical assistance, facilities,
supplies or other types of support by insurance, Medicare, Medicaid, or other third party
payor.
To ensure effectiveness, Network Participants will be given an opportunity to participate
in periodic Network training exercises (exercise and drills) simulating disaster events
affecting the Region.
Network Participants bear no liability or responsibility for any claim, loss or damage
arising out of or in conjunction with voluntary participation in the Network.
Nothing in this agreement shall be construed as limiting the rights of the Network
Participants to affiliate or contract with any other entity or operating an entity or other
health care facility on either a limited or general basis while this agreement is in effect.
This Memorandum of Understanding may be canceled at any time by any party by
giving a thirty (30) day written notice to the other parties. However, if no such notice
is given, the Network agreement remains in effect in perpetuity.
MOU - Liability
Participants assume no liability merely by becoming a signatory to the MOU
However, participants may be liable for acts and omissions of their staff in performance
under the MOU or governmental orders
Also, in following their pre-approved plan, in case of Declaration by Governor, there
may be certain immunities for staff
Transportation/EMS Contracts
Out of state ambulances are forbidden to make point to point runs within the state.
Otherwise, state EMS rules allow full use of ambulances from out of state into the state.
Rules could be waived. Even so, would there be enough ambulances in a disaster if all
hospitals contract w/ same EMS ambulance Co? What other vehicles could be used?
Common carriers
School & municipal busses
Transfer Agreement Issues
Got appropriate transfer agreements?
Could they go out of state perhaps?
To what types of facilities?
Do you have agreements with carriers?
Are there backups for everything?
Could your EMAC Agreements incorporate cooperation on ―transfer agreement‖
language and use of resources?
Security & supplies of personnel and patients?
Records be transferred electronically (EMR)?
Private Agreements
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26. The example of mutual aid agreements is the ―Metropolitan Area Hospital Compact‖ of
the Twin Cities. It does the following:
• specifies that the agreement is not a legally binding contract; rather it outlines a
general policy of cooperation and coordination in the event of a disaster.
• emphasizes that the agreement is voluntary.
• designates a mechanism through which signatory organizations can
communicate with one another to request aid in the event of a disaster.
• requires a signature of the organization‘s representative.
It addresses:
• Communications including liaison officers, EOCs, includes a joint public
information center provision
• Forced evacuation – distributes patients equally
• Cooperates with NDMS activation
• Requires reporting of bed capacity. (In Alabama use AIMS )
• Discusses auxiliary locations in sever disaster and how each hospital will
contribute personnel to man such a facility
• Discusses sharing of staff
Types of Mutual Aid Agreements - EMAC
EMAC affords states providing and receiving post-disaster assistance the ability to move
equipment and people across state lines rapidly by establishing systems and protocols
for:
1. the acceptance of out-of-state medical licenses;
2. the recovery of costs incurred by states providing assistance;
3. legal liability claims that arise from the activities of out-of-state workers; and
4. workers‘ compensation payments should those out-of-state workers be injured or
killed while responding to the disaster.
In short, EMAC provides for ―mutual assistance between states … in managing any
emergency or disaster that is duly declared by the governor of the affected state(s),
whether arising from natural disaster, technological hazard, man-made disaster, civil
emergency aspects of resource shortages, community disorders, insurgency, or enemy
attack.‖
Intrastate Mutual Aid – one local government to another.
Interstate and Regional Mutual Aid – International „Mutual Aid‟ Can involve
aid from one country to another – e.g., Australia and Canada both provide fire fighting
assistance to the US Forest Service in heavy fire fighting years – or between states,
provinces, and local governments along the US-Canada or US-Mexico borders. Under
the US Constitution, no state may enter into any agreement with a foreign power
without the consent of Congress. Article 1, Section 10. Many jurisdictions on the
border have not sought congressional approval for intergovernmental agreements.
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27. While these agreements appear to work well, any provisions providing for liability
protection in these agreements may be declared invalid if it were ever scrutinized in
litigation.
Emergency Management Mutual Assistance Compact (EMAC)
EMAC is designed to: authorize mutual aid with other states;
Facilitate licensure (deemed status) and immunities of other state‘s workers;
Permit condemnation, seizure and compensation of facilities and property;
Coordinate evacuation; and direct all civilian officers.
It has 49 states as signatories to EMAC. Only California is not, and they can‘t make up
their minds whether they‘re in or not.
Interstate Mutual Aid
• Interstate compacts require the consent of Congress under the US Constitution.
This approval was provided in 1996. PL 104-321, October 19, 1996, 110 Stat
3877. In Alabama, see 31-9-7.
• Under a Federal Stafford Act Declaration, EMAC requests Coordinated through
EMAC personnel at JFO if appropriate.
• The National Incident Management System is developing a system for describing
clearly the different kinds of resources that can be provided under mutual aid
agreements – to assure that the responding jurisdiction knows exactly what
resources are being requested. This initiative is called ―resource typing‖ and is
being conducted in coordination with the member states of EMAC.
EMAC provides that any employee of responding jurisdiction is licensed in the
requesting jurisdiction.
Mutual Aid: Key Characteristics
Mutual aid can cover a wide range of activities and arrangements between numerous
different levels of government. Frequently, mutual aid agreements are not only in
writing but also authorized by special legislation.
For example, in 2004 Congress enacted special legislation to facilitate mutual aid
between jurisdictions in the National Capital Region; these arrangements had been
hindered by the significant differences in tort liability in the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458,
__ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF
2004). The statutory solution here was to provide that the law and court system of a
responder‘s home jurisdiction would apply to lawsuits against the responder and his or
her employing jurisdiction.
27 | P a g e

28. A key aspect of mutual aid agreements is that they do not require that assistance be
provided. No government can commit to send resources elsewhere in advance without
knowing whether those resources are required to handle its own problems
Key Characteristics
Some mutual aid agreements do not provide for compensation. These agreements
normally cover small scale incidents requiring limited resources and a relatively short
duration.
If the activities performed under a mutual aid agreement are ―emergency measures‖
that would otherwise be eligible for federal reimbursement under the Stafford Act, then
the costs charged under the mutual aid agreement would also be reimbursable – but
only if the mutual aid agreement is in writing and requires compensation. See FEMA
Public Assistance Policy No. 9523.6, ―Mutual Aid Agreements for Public Assistance.‖
(September 22, 2004).
Litigation over mutual aid agreements is rare. Most cases have involved employees
injured during a response, as a result of legal uncertainty over whether workman‘s
compensation limitations applied and which jurisdiction was responsible.
In the absence of dispute resolution provisions in the mutual aid agreement, disputes
between requesting and responding jurisdictions may be litigated in a court with
jurisdiction over the parties and subject matter. For example, original jurisdiction over
disputes between states is in the United States Supreme Court.
EMAC in the Broader Sense
EMAC, in the Broader Sense is any agreement for mutual aid that can facilitate the
mission among or with:
The member facilities and their staffs,
Suppliers of goods and services,
Public health and emergency management,
State licensing agencies,
State Medicaid agencies and other insurers,
Federal agencies – CMS, CDC, FBI, DOJ and
Local and state officials.
Cost Reimbursement
The formulation of organizational mutual aid agreements is a rapidly growing trend in
the U.S. Many state and local governments, and private for-profit and nonprofit
organizations formulate mutual aid agreements to provide emergency assistance to
each other in the event of disasters or other crises.
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29. The conditions of the agreements may be to provide reciprocal services or to receive
direct payment through specific labor and equipment rates outlined in the agreements.
These agreements usually are written but, occasionally, are by understanding or are
arranged after a disaster occurs.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288,
reimburses mutual aid agreement costs associated with emergency assistance provided
all of the following conditions are met:
1. The assistance requested by the applicant is directly related to the disaster and
is eligible for FEMA assistance.
2. The mutual aid agreement is in written form and signed by authorized officials
of the agreeing parties prior to the disaster.
3. The mutual aid agreement applies uniformly in emergency situations. The
agreement must not be contingent upon a declaration of a major disaster or emergency
by the Federal government or on receiving Federal funds.
4. The providing entity may not request or receive grant funds directly. Only
the eligible applicant receiving the aid may request grant assistance.
5. Upon request, the applicant must be able to provide FEMA with documentation
that the services were requested.
Criterion 4 indicates that hospitals that have incurred costs through assisting other
hospitals can retrieve those costs through obtaining monies disbursed to the hospital
receiving the aid.
Contractual Liability
A contract is just a legally enforceable promise between two or more parties. They
don‘t have to be big legal documents drafted by lawyers. Some contracts must be in
writing, but others can be verbal, or scribbled on the back of a napkin. The elements
generally recognized as creating a contract are an agreement between the parties and
some consideration - something of value, not necessarily money- that is exchanged by
the parties.
However, remember the rule above, ―if it ain‘t wrote down, it didn‘t happen,‖ so, get it
in writing if at all possible.
So how can contractual liability come into play for EMS programs? It can surface in
several ways, which are listed on this slide. One of the most important exposures is
assuming liability from the other party in a contract, For example, an EMS program may
be asked to agree in a contract or letter of agreement that it will be responsible for any
liability arising from the activities of its volunteers. This would be the effect of an
indemnification and hold harmless clause in the letter of agreement. Or a response
partner may require the program to have insurance it doesn‘t have, leaving it in breach
of contract for failing to have it.
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30. Avoiding/Reducing Liability
Risk management is approached on two levels: Agency level and Individual level.
Avoiding liability means not being held liable in court (it does not mean ―can‘t be sued‖)
Internal Practices to Reduce Liability Risk – Provide for
Credentialing and assignment to appropriate duties
Criminal background checks
Verifying necessary licenses (professional, driving, watercraft)
Clear activation and deactivation procedures
Employee orientation, training and exercises
Employee identification badges
Written partnership agreements stating roles & responsibilities
Written engagement/utilization records
Procedures for keeping patient treatment notes
Rules of conduct and grounds for dismissal
Communications procedures
Post-incident debriefing
Practical Advice – Liability, and Out of State Providers
Disaster Privileges
Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID,
(or personal knowledge by staff member)
Assign provider to area qualified to work
Abbreviated orientation program for emergency personnel
Brief on state-specific liability issues such as Licensure, Good Samaritan, and Med-Mal
Laws. Consider using ADPH volunteer system to vet out of state personnel.
Altruistic Patients
Patients who say, ―take her ahead, I‘m not that injured.‖ Remember, ―No good deed
ever goes unpunished‖ thus regardless of what they say, follow triage protocol and
document their statements.
For A Copy of Presentation and a Paper
See ―Ethics Paper 2012‖ a download on Slideshare 7
See several presentations & documents also: http://www.slideshare.net/jwible
Blog: http://www.johnwible.blogspot.com
Also on Facebook
See Also
Hospitals and Community, Emergency Response - What You Need to Know,
Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)
TJC Standards on Hospital Emergency Planning: CAMH/Hospitals
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31. More Resources - TJC
Healthcare at the Crossroads TJC
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0
CCsQFjAB&url=http%3A%2F%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2F
emergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTu
QbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3Q
Example Hospital TJC Plan
An example plan is found at: http://www.uhb.org/pnp/dsplan.htm. This is from the
State University of New York Hospital System.
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