LEGAL ISSUES ESSENTIAL TO HOSPITAL EMERGENCY PREPAREDNESS

Underlying hospitals’ roles during emergencies are a slate of federal and state laws that require (or strongly encourage) effective preparedness and planning. Following September 11, 2001, the US Congress prioritized national emergency preparedness through multiple legislative bills.7 In 2003, Homeland Security Presidential Directive 8 authorized state and local governments to enhance national emergency preparedness in collaboration with multiple federal agencies.8 Pursuant to the Public Health Service Act,9 the Health Resources Services Administration funneled nearly $500 million through state agencies to hospitals for protective equipment, education, and training to improve emergency preparedness.10, 11 The Department of Homeland Security devotes significant expertise and resources to support hospital emergency preparedness. Homeland Security’s National Incident Management System requires hospitals receiving funds to adopt standards consistent with their emergency plans.12 The Pandemic and All-Hazards Preparedness Act of 2006,13 which reorganized federal public health emergency responses,Reference Hodge, Gostin and Vernick14 authorizes the Department of Health and Human Services (DHHS) to withhold emergency preparedness funds from hospitals that do not meet certain benchmark requirements.15, 16 DHHS’ Center for Medicare and Medicaid Services requires participating hospitals to develop and implement comprehensive emergency plans.17 The Joint Commission requires hospitals to engage in emergency planning as a condition of accreditation.18 Corresponding state laws and licensing standards similarly require, fund, or strongly encourage hospital emergency preparedness.2, Reference Maldin, Lam and Franco19

Against this legal backdrop requiring emergency preparedness, hospital administrators, emergency planners, and their personnel confront diverse and profound legal issues.Reference Rickard and Fehn6Table 1 sets forth select legal emergency preparedness questions that hospitals face in several key areas including organizing personnel, access to treatment, coordinating health services, patients’ rights, allocating resources, liability, reimbursement, and interjurisdictional cooperation.

Effective emergency preparedness planning requires hospitals and their personnel to address these (and likely other) legal issues before an emergency through tailored assessments based on jurisdiction-specific laws at the federal, state, and local levels. Emergency plans or MOUs may need to be altered depending on legal requirements based on these assessments. For example, a hospital emergency plan that anticipates the use of volunteer health professionals to meet patient surge capacity may require reexamination if state or local laws limit volunteer participation.20 Examining the legal implications incident to planning efforts can facilitate the performance of preparedness activities during actual emergencies.

However, preemergency legal assessments are only part of emergency legal preparedness. In nonemergencies, statutory, regulatory, and judicial case laws offer reasonable predictability as to what constitutes lawful behavior or actions. During declared states of emergency, the legal environment changes extensively.Reference Hodge5 Emergency declarations instantly trigger a host of nontraditional powers that are designed to facilitate response efforts through public and private sectors. Emergency laws focus on the following:

• • Providing government with sufficient flexibility

• • Mobilizing central commands and infrastructures

• • Encouraging response efforts by limiting liability

• • Relaxing standards of care and licensure

• • Shifting health personnel and resources

• • Balancing communal and individual interests to protect the public health

The extent of legal changes, however, depends on the type of emergency declared. The federal government, every state, many territories, and some local governments may declare either general states of emergency or disaster in response to crises that affect the public’s health.Reference Hodge5 Such declarations largely authorize emergency management agencies and others to coordinate responses in addressing exigencies. The federal DHHS and more than half of the states may also declare formal states of “public health emergency” (Figure 1),21 based in part on the Model State Emergency Health Powers Act (MSEHPA) drafted in 2001 by the Centers for Law and the Public’s Health.22

FIGURE 1

States that statutorily define “public health emergency”

Unlike states of emergency or disaster, MSEHPA authorizes public health authorities to coordinate response efforts under a high threshold of what constitutes a “public health emergency,” defined as23:

An occurrence or imminent threat of an illness or health condition that is (1) believed to be caused by …bioterrorism, the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin; and (2) poses a high probability of …a large number of deaths in the affected population, a large number of serious or long-term disabilities in the affected population; or widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population. 24

Some jurisdictions, such as the federal government and multiple states, may jointly declare states of “emergency or disaster” and “public health emergency,” which can lead to confusion as divergent governmental powers and entities are unleashed to address the common goal of ameliorating the impact of emergencies.Reference Hodge5

Enveloped in these varying emergency schemes are a host of powers and protections that can further (or hamper) hospital preparedness activities depending on legal interpretations made in real time. Hospital administrators, emergency planners, and their legal counsel may not understand or be able to assess how the legal environment has changed during emergencies. Facing legal uncertainty, some health care personnel may act without knowledge of legal ramifications; others may not act at all because of legal concerns. Neither of these consequences is acceptable if they impede hospital emergency response efforts.Reference Hodge and Anderson25

Through a concept we call legal triage, hospital administrators, emergency planners, and their legal counsel must prioritize legal issues and solutions to facilitate legitimate public health responses during declared states of emergencies.Reference Hodge and Anderson25 This requires them to do the following:

• • Understand how legal changes pursuant to the declaration of a public health emergency temporarily alter, suspend, or obviate typical legal interventions

• • Continuously monitor changing legal norms during emergencies

• • Identify legal issues that may facilitate or impede preparedness activities in advance or as they arise

• • Develop and explain innovative legal solutions that are motivated toward protecting patients, promoting the public’s health, and respecting individual and group interests

• • Revisit the utility and efficacy of legal interpretations to improve health outcomes during emergencies

Practicing legal triage is not easy. Amidst increased morbidity and mortality and changing societal expectations during public health emergencies, public and private sectors may have competing needs and goals.Reference Buehler, Whitney and Berkelman26 Hospitals may be focused on their immediate patient’s needs while public health authorities attend to the larger community’s needs. Government demands for available resources, personnel, or facilities may directly affect hospitals’ emergency plans and abilities.Reference Hodge and Anderson25 For example, hospital planners may have purchased adequate medical supplies in advance of an emergency. However, their supplies may be depleted by governmental authorities who can legally take them (with compensation) for communal distribution under the MSEHPA and many existing emergency laws.Reference Gostin, Sapsin and Teret27 To enhance preparedness, hospitals may need to plan ahead by obtaining additional resources from other regional hospitals through MOUs or from other suppliers through advance contracts. Being prepared for these and other legal uncertainties during actual emergencies entails advance legal maneuvers, identification of issues, competency building, and legal training during nonemergencies.

LEGAL ISSUES IN MEDICAL TRIAGE

Emergencies or disasters that have a significant impact on the public health require affected hospitals and their personnel to meet surge capacity by providing health services to a large number of patients despite limited resources. During a mass casualty event this may require hospitals and personnel to shift largely from individual patient care to population-based care via well-planned medical triage.Reference Zimmerman28 DHHS specifically recommends, for example, that hospitals include triage, clinical evaluation, and admissions criteria in their plans for pandemic influenza.29

Multiple medical triage protocols exist and may apply, depending on the type of disaster event (eg, trauma, critical care, chemical, biological, radiological, nuclear). The goal of each of these protocols is to save as many lives as possible with limited resources. Although ethical principles may guide how to allocate resources in disaster situations, no medical triage protocol is 100% effective toward limiting morbidity and mortality among affected populations. One historic study found that the triage officers in 2 large mass casualty incidents were unable to identify as many as half of the victims who sustained life-threatening injuries.Reference Zimmerman28 Unpredictable outcomes of medical triage raise potential civil and criminal penalties that hospitals and health care personnel may face from their decisions about who should receive life-sustaining treatment. Principal among potential legal claims are actions in negligence, vicarious liability, wrongful death, and discrimination.

These and other legal claims resulting from medical triage may arise in multiple ways. During declared emergencies, as hospitals shift to meet surge capacity, patients may go through multiple triage processes: in the prehospital environment, via the emergency department, within the hospital, and upon a change in clinical status.Reference Devereaux, Dichter and Christian30 Tertiary triage in hospital settings involves sorting patients in terms of those who require care and those who have a high risk of death. Those who meet the inclusion criteria for tertiary care are prioritized and offered life-sustaining treatment.Reference Devereaux, Dichter and Christian30 Others are excluded from treatment but should be provided palliative care. Many hospitals designate triage officers to decide ultimately who receives care at each stage of triage and provide little or no process for patients to appeal decisions.Reference Devereaux, Dichter and Christian30

Inevitable mistakes by personnel conducting triage may leave personnel or triage officers open to claims of liability based in negligence. Hospitals may be secondarily liable under claims of vicarious liability for the negligent acts of their personnel who are within their scope of employment.Reference Hodge, Calves and Gable31, 32 Although the threat of liability may increase during emergencies, protections from liability may also surface. Immunity provisions triggered by the declaration of an emergency protect some health personnel from civil liability, but the impact of these laws varies depending on the status of responders as a public or private employee or volunteers, the method of deployment, and other factors.Reference Hodge, Gable and Calves33 Such legal protections for individuals, however, are rarely extended to entities such as hospitals,Reference Hodge, Calves and Gable31 although this is changing due to state legislative reforms.34 Hospitals should take a proactive approach to limit their liability by developing plans and protocols, practicing their plans, having a transparent triage process, and adequately documenting triage decisions.Reference Devereaux, Dichter and Christian30

Even so, the aftermath of Hurricane Katrina in 2005 demonstrated that requiring hospitals to implement a medical triage plan is not always sufficient. Following Katrina, medical triage decisions were made in a state of chaos unlike anything that health care providers had previously faced. Accounts suggest that hospitals in New Orleans triaged patients under different standards.35 At Tulane University Medical Center the sickest patients were treated first. Doctors at Lindy Boggs Medical Center designated the most seriously ill to be evacuated first, whereas firefighters insisted the sickest patients be evacuated last.35 At Memorial Medical Center, Dr Anna Pou recounted that the staff was under military orders to implement “reverse triage,” meaning the healthiest patients were evacuated first.36 These differing standards led to fundamental injustices because patients’ chances of survival depended on their condition and the hospital where they were located.

As a consequence of the sickest patients remaining at Memorial Medical Center during what have been described as miserable conditions, Dr Pou later faced second-degree murder charges for allegedly providing 4 patients with a lethal “cocktail” of medications to hasten their death. She stated that the health care providers “did everything in [their] power to give the best treatment that [they] could to the patients in the hospital to make them comfortable.”37 An Orleans Parish grand jury ultimately refused to indict her on criminal charges, but civil wrongful death charges are still pending.38 Louisiana has since enacted several disaster reform laws including Senate Bill 301, which “provides immunity for simple and gross negligence by doctors and nurses, thereby protecting them from civil damage to patients as a result of evacuation or treatment (or failed evacuation or treatment) at the direction of the military or government in accordance with ‘disaster medicine’ protocols,” including reverse triage.38

Recommendations on who should receive treatment via medical triage during a disaster implicate federal and state laws prohibiting age and disability discrimination.39 The federal Age Discrimination Act prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance (including most hospitals that receive federal reimbursements through Medicare and Medicaid programs).40 Research indicates that approximately 50% of those who died in Louisiana as a result of Katrina were 75 years old or older.Reference Brunkard, Namulanda and Ratard41 Although it is unknown how many of these people died related to decisions made during medical triage, antidiscrimination laws seemingly prohibit age from being considered as the sole factor for exclusion from treatment. Even so, recent panel recommendations on critical care triage offer 2 major exclusion criteria, namely a patient’s Sequential Organ Failure Assessment score and severity of chronic illness (which is defined to include being older than 85 years).Reference Devereaux, Dichter and Christian30 Age was not initially included in the exclusion criteria because it “may not be a strong predictor of critical care outcomes in general.”Reference Devereaux, Dichter and Christian30 Only later was age included as a result of consistent feedback from experts and other stakeholders. The panel admitted that this is an area that requires more research and input from the community.Reference Devereaux, Dichter and Christian30 Making triage decisions solely or even largely based on age while ignoring potential life expectancy would be inconsistent with these recommendations. Future decisions to not treat patients based solely on age and not health status may subject hospital and triage officers to claims for age discrimination.

Discrimination claims may also arise from medical triage decisions that affect other vulnerable populations, including people with disabilities and minorities. After a class action lawsuit (which ended in a settlement agreement) was filed against the Federal Emergency Management Agency challenging its ability to provide accessible housing to people with disabilities during emergencies,42 President George W. Bush issued an Executive Order in July 2004 to prioritize people with disabilities in all aspects of emergency preparedness, response, and recovery.43 Similarly, DHHS and the Office of Minority Health developed a consensus statement on disaster preparedness for minority communities.44 The Department of Homeland Security Appropriations Act of 2006 requires the Federal Emergency Management Agency to address the needs of populations with limited English proficiency during a disaster.45 These and other legal requirements suggest that hospitals and health care providers that fail to treat vulnerable populations equally could face claims of discrimination under state and federal civil rights laws.

LEGAL RISKS IN FAILING TO PLAN FOR EMERGENCIES

The common perception is that liability most often arises in emergencies or disasters through actions or omissions that occur during the throes of exigency. However, hospitals and health care personnel are also subject to civil liability, loss of accreditation, and other sanctions for failing to meaningfully plan for reasonably foreseeable disasters. In addition, hospital administrators and emergency planners can be held individually liable for failing to facilitate adequate disaster preparedness. Potential liability for “failing to plan” is underappreciated and seldom fully understood. For the purposes of this section, civil liability refers to the responsibility that a person or entity owes to another for causing harm due to a failure to fulfill certain established duties,46 either through actions or omissions.47 Criminal liability may arise in instances where one’s actions fail to satisfy certain general or statutory duties so as to constitute a morally reprehensible act against society (with or without harm to any particular person).48 Determining the existence and defining the contours of such duties are threshold questions in “failure to plan” cases. Once duties are established, fact-finders (eg, juries, judges, accreditation committees) determine whether the acts or omissions of the at-fault party deviate from those duties. Hospitals and health care personnel may thus be liable for a failure to plan for emergencies if it is determined that they had a duty to plan, the duty was breached, and the breach was the proximate cause of harm to patients.

As to the first element, hospitals and health care entities clearly owe various duties to patients, including a duty to take reasonable steps to ensure a safe environment. This is the same general duty shared by all entities that serve the public. For example, restaurants and movie theaters have general duties to prevent foreseeable harm from foreseeable dangers such as liquid spills49 and fires.50 These legal duties have been explained and refined through litigation and subsequent formulation of safety laws and professional best practices. Accordingly, restaurants are legally obligated to frequently inspect their premises for slippery surfaces and movie theaters must install lighted exits to facilitate rapid evacuations during fires. Failures to inspect premises or install safety lights may lead to liability when people are injured or killed. As facilities of public accommodation, hospitals have similar duties to take reasonable measures to avoid foreseeable harms in various circumstances (eg, fires, electrical outages).

Hospitals also have additional, specific duties to plan that exceed providing a safe and secure environment. As providers of professional services, they are required to provide medical care to patients that is consistent with accepted standards. This includes ensuring that treating physicians are appropriately qualified51 and that medical resources comply with reasonable standards of quality and maintenance.51 In addition, based on the unique “trust relationship” between patients and health care providers, hospitals and health care professionals also have a general duty to act in the best interests of individuals that they accept as patients.52 As a result, once a patient–physician relationship is initiated, the physician and hospital are obligated to provide services until the patient consents to ending the relationship.53, 54 The potential for civil liability to stem from this duty is reinforced by a number of federal55 and state56 laws that clarify facets of the patient–physician relationship.

Hospitals’ duties to provide a safe environment, high-quality medical care, and patient sustenance do not end during disasters. They may, however, be altered. The contours of these duties are informed by prevailing standards of care with which hospitals must adhere to maintain the operational ability of the facility. To quantify the appropriate standard of care, hospitals must consider the potential harm from a particular incident, the likelihood of the incident, and the burden of avoiding the harms related to the incident.57 Disasters affecting the public health can greatly compromise the ability of ill-prepared health care providers to render critical care resulting in significant and avoidable morbidity and mortality. If these harms to patients can be tied to improper, insufficient, or outright failures to plan, then liability may follow for 3 principal reasons: the value of proper planning on minimizing the harms to patients during disasters is incontrovertible; basic planning is rarely cost prohibitive (or, as noted above, sometimes directly funded by government)12; and a wide array of laws and standards requires hospitals and health care providers to plan for disasters. These include the following:

• • State licensing statutes58 and regulations59 for hospitals, and nursing facilities,60 which require, for example, the ability to shelter-in-place for certain periods of time58

• • State emergency preparedness statutes that require evacuation plans61

• • Safety standards promulgated by the Occupational Safety and Health Administration relating to disaster planning and preparedness62

• • Standards of accreditation by The Joint Commission regarding emergency management requirements63

• • Medicaid and Medicare accreditation requirements including provisions requiring evacuation and general disaster plans64, Reference Mead65

• • Preparedness requirements under the National Incident Management System and the Hospital Incident Management System that require hospitals and other institutions to have disaster plans and command structures to respond to emergencies12

These (and other) requirements strongly support a hospital’s general duty to engage in emergency planning and preparedness activities. The question is whether this sort of general duty to plan may trigger civil liability in specific cases.66

In recent cases, courts and juries have tended to commiserate with health care providers, even in the face of planning failures that contributed to shockingly tragic deaths. During Hurricane Katrina, the failure of a Louisiana nursing facility to carefully formulate and implement an emergency evacuation plan led to the drowning deaths of 34 elderly and incapacitated patients, many of whom floated out of the broken windows of the facility.Reference Mead65 Although 45 civil suits are pending,67 a grand jury acquitted the owners of the nursing facility of all criminal negligence charges, despite significant evidence that additional preparation would have saved lives.Reference Mead65 The grand jury and segments of the population apparently viewed those failures to satisfy formulated planning requirements as unpersuasive evidence that the nursing facility acted unreasonably as stewards of their patients.68

The continued expansion of emergency preparedness requirements for hospitals may diminish the likelihood that juries will look sympathetically on negligent conduct. Moreover, in some states, violations of legal planning requirements (eg, a hospital’s failure to plan for emergencies when federal, state, and local laws require such plans) may establish an automatic presumption of negligence.69, 70 In other states, such violations could be viewed by courts as irrefutably establishing negligence under what is often called negligence per se.Reference Kozlowski71, 72 Although applied differently among the states, 73–75 legal proof of negligence per se generally requires evidence that the

1. 1. Victim was a member of the class of persons intended to be protected by the legal requirement (eg, a patient who died because the hospital failed plan for evacuations during a declared emergency)

2. 2. Risk was intended to be resolved by the legal requirement (eg, the risk of harm would have been mitigated if an adequate evacuation plan was in place)

3. 3. Breach of the legal requirement caused harm (the failure to plan for an emergency proximately caused patients’ deaths)74

Recent legislative efforts by states have significantly enhanced liability protection for the actions of volunteers and entities employing volunteers during emergencies through formal MOUs.34 These protections are unlikely to apply to the actions or omissions of hospitals taken in advance of a disaster. Given the proliferation and increased legal support for hospital preparedness and planning standards, whether based on general negligence theories or theories of negligence per se, potential civil liability for failure to plan is a risk that hospitals cannot afford to take.

Authors' Disclosures

The authors report no conflicts of interest.

Acknowledgment

The authors gratefully acknowledge the contributions of James Tsai, JD, and P.J. Wakefield for their editing and formatting assistance.