Although caring for patients is the No. 1 concern for healthcare providers on any dayemergency situation or notwe would argue that a mass casualty situation is one that requires advanced planning not only from a patient-care perspective but also because of legal ramifications. Healthcare providers who fail to prepare in the hope that a mass casualty event wont someday land at their doorstep are setting themselves up for both an operational and legal disaster of their own. This can be avoided with advanced planning. As the Chest report suggests, the time to plan ahead is now.
In creating surge capacity, the report recommends specific quantities of essential medical equipment that providers should have on hand. This may be setting the standard against which healthcare provider preparedness will be judged in the future. The report also acknowledges that providing care to large numbers after a mass-casualty event requires a fundamental shift in a providers approach to healthcare from individual-focused to population-oriented care.
With so many casualties, healthcare providers will exhaust their surge capacity at some point, leaving them allocating scarce resources. The report, similar to other planning recommendations done for the use of mechanical ventilators in an emergency situation, recommends using uniform algorithms that include three basic criteria: inclusion, exclusion and prioritization. Inclusion criteria are clinical findings that indicate use of the critical resource is medically necessary. Exclusion criteria remove from consideration those patients who have a very high risk of death, little likelihood of long-term survival, and a correspondingly low likelihood of benefit from critical care resources. If a patient meets the inclusion criteria, and does not present any exclusion criteria, the patient is eligible to receive care.
Prioritization criteria help determine which patients get the resource first.
Exclusion criteria are controversial. According to the report, people who are 85 or older and those suffering from severe baseline cognitive impairment should not be given scarce critical resources. In our opinion, healthcare providers are well advised to start thinking now about whether reliance on these two exclusion criteria is acceptable for their facilities and their communities.
The uniformity encouraged by the report to help allocate scarce resources can be achieved in numerous ways. Perhaps the simplest approach is through the use of algorithms promulgated by the state. This top-down approach is currently being used in several states for the allocation of mechanical ventilators, including New York. Other states are reluctant to use the top-down approach because of the inherent difficulty of designing algorithms that will apply equally to all of the providers in a state. These states strongly encourage their care providers to plan for how to allocate scarce resources but recognize that each provider will develop its own clinical algorithms that reflect its unique culture, capabilities and resources.
This flexible approach makes planning by each provider absolutely critical. A facility-specific plan is needed to implement, communicate and enforce compliance with the algorithm. For instance, the report outlines numerous conditions precedent to allocating scarce resources, including identification of critically limited resources. A healthcare facility needs to have pre-established processes for identifying these circumstances and communicating them to the appropriate individual within incident command.
Providers must also realize that the state cannot create algorithms for the allocation of every scarce resource. As a result, we recommend that healthcare providers devise their own plans for allocating resources in the absence of state or federal guidance. A 2006 report from the federal Agency for Healthcare Research and Quality stated: Ideally, hospitals should be able to follow guidance and decision support tools to make resource allocation decisions that are sanctioned and approved at the federal level and distributed by the state.
If no guidance exists, it will be incumbent on the hospital to have a plan or strategy for bringing together the appropriate personnel who can make the best decisions possible and re-evaluate the situation during each planning cycle.
This places the burden squarely on healthcare facilities to be ready to implement allocation algorithms. Failure to do so may put the facility at risk for negligent failure to prepare, something we witnessed during the 2003 severe acute respiratory syndrome, or SARS, epidemic in Toronto and saw most recently in post-Hurricane Katrina litigation. Further, individual providers practicing in the facility may be at risk for malpractice liability. The report finds that, as a legal matter, if a triage algorithm constitutes the standard of care during a mass casualty event, then a patient next in line for a ventilator might pursue a claim against the provider for failure to treat if the provider deviates from the algorithm. The implications of this statement are explosive and underscore the need for all healthcare facilities to begin planning now for how to allocate scarce resources.
Certainly the fear of creating liability makes healthcare providers reluctant to engage in planning for how to provide care with scarce resources. This can create organizational paralysis around disaster planning for these most challenging issues. Healthcare providers cannot afford to let these concerns impede their planning efforts. If they do, they may be closing the door on one perceived liability and opening the door to another. Inaction will be the providers greatest liability risk.
To help ensure that the door to failure-to-prepare liability stays closed, preparedness efforts at individual facilities should take place in conjunction with efforts at the regional and state level and should result in plans for surge that meet the established benchmarks and the allocation of scarce resources once a provider has exhausted its surge capabilities. To be implemented, the plans must be based on realistic assumptions.
Healthcare providers should draw on existing resources to help further their planning efforts. Some states, such as Virginia, have been working on issues related to allocation of scarce resources for several years. The Virginia Department of Health, the Virginia Hospital & Healthcare Association and our firm jointly developed the Critical Resource Shortage Planning Guide, a tool designed to help hospitals plan for and implement allocation decisions. Healthcare providers should find out what their state and local health departments and hospital associations are doing in this area. To the extent that they have created resources, use them. To the extent that they have not yet done so, encourage them to start.
The report recognizes that there are still significant unanswered questions regarding reimbursement, regulatory, and liability concerns related to emergency mass critical care and allocation of scarce resource planning. Healthcare providers should consult their legal counsel and advisers to seek guidance in these areas. Providers should not, however, let these issues inhibit their planning efforts. They should begin planning now if they have not already begun doing so and should continue planning if the process is already in progress. Wherever a provider is in its planning efforts, it should always remember a Dwight Eisenhower truism: Plans are nothing; planning is everything.
Steven Gravely is a partner at law firm Troutman Sanders in Richmond, Va., and head of its healthcare practice. Erin Whaley is an associate in the practice.