A jury 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 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 successfully 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 far-reaching 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.
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