Katrina's Legacy Includes New Threats of Liability Litigation
The Louisiana Supreme Court ruled in 2007 that LaCoste’s family could sue the hospital for negligence, which does not cap damages instead of for medical malpractice, for which claims are limited to $500,000. This case is believed to be the first of approximately 200 lawsuits that have been filed relating to deaths in hospitals or nursing homes during the flood after Katrina. This case could set precedent affecting both the Katrina-related lawsuits awaiting trial in federal or state courts and lawsuits based upon future catastrophes, since disaster planning is far different than providing medical care.
Regardless of the decision of the jury, the LaCoste lawsuit and similar litigation is likely to give rise to a theory of general tort liability against health-care institutions predicated upon their installation of emergency generation that fails to operate in widespread disasters. A verdict in favor of LaCoste’s family could impose an expensive burden upon many other U.S. hospitals to protect against threats whether realistic or unrealistic. The emergence of this new theory of liability against health-care institutions based upon lack of emergency preparedness has not gone unnoticed by insurers, whose requirements (and, more to the point, premiums) affect the actions of insured hospitals.
Hospitals often operate on thin profit margins and struggle to meet the demands imposed on them. Deciding whether to purchase critical machines for intensive care or protect generating units has been described as a zero sum game. Will hospitals be forced to choose between protecting backup generators against every type of disaster that might possibly affect the region and meeting other urgent health-care requirements? The answer of the New Orleans jury to that question may well be “yes.”
This type of liability presents a special challenge to specifying engineers and hospital administrators. Health-facility backup generators have historically been required to power critical health-care facilities in the event of short-term electric grid failures. For example, the National Fire Protection Association Standard for Emergency Power (NFPA 110) requires backup generation to provide immediate life safety, such as ensuring necessary power to complete medical and procedures in which cessation presents a danger of harm or even death to patients.
Health-care facility operators who meet no more than the required regulations and oversight organization standards must also be prepared for after-the-fact allegations that the operator should have gone beyond such standards. An important issue in lawsuits such as this is to what extent health-care operators can be held liable for not effectuating measures that exceed such regulations and standards. An example of such an allegation is the LaCoste family’s claim that the hospital should have installed or specified a fuel pump that was submersible to serve a generator that was located above the flood line. The fuel pump was designed to provide fuel from a fuel tank to the elevated generator, but floodwater caused the pump to stop working.
The tragic events caused by Katrina and other events during which a loss of grid power negatively impacted clinical operations, such as the Northeast blackout in 2003, flooding in Houston during 2001, and other major hurricanes such as Ivan and Jean in 2004 and Rita in 2005, combined with the increasing role of electronic equipment in critical patient care, have led to a reassessment of what should be taken into account when installing hospital emergency generation. Such considerations include which steps are necessary to protect existing emergency generation against potential disasters (such as elevating generators above possible flood levels), providing fuel storage that anticipates lengthy grid outages, and determining the appropriate duration of grid outage to protect against.
Existing standards, or at least recommendations, are changing in response to these realities. The majority of American hospitals are accredited by the Joint Commission [formerly the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)]. Following its review of the experiences of health-care facilities in disasters such as the Katrina flood, an alert circulated by the Joint Commission advised:
“… recent experiences demonstrate that emergency power systems that meet [existing] standards are not always sufficient during major catastrophes [since] they can only support the power needs of a small percentage of the needed equipment . . . , or they are unable to supply power for an extended period of time. For example, in the wake of Hurricane Katrina, many health-care organizations did not have sufficient emergency power to cool or ventilate their facilities. In other instances, evacuation of patients was delayed because only one or two elevators could be operated. To assure optimal safety during catastrophes, health care organizations are encouraged to go beyond the minimum NFPA life safety requirements . . . ”
The Joint Commission also recommended the following risk reduction strategies in that alert:
“. . . assure optimal location of the generator, fuel tank, and support equipment (for example, in flood prone areas, above potential flood levels) and proper redundancy (multiple generators feeding loads versus loads dedicated to a single generator)…assure that emergency power feeds critical systems, heating, air conditioning and fan units in intense climate regions; and air handlers in isolation rooms (to minimize the risk of airborne infections), in protective environment rooms, and in . . . pharmacy hoods.” Joint Commission, Preventing adverse events caused by emergency electrical power system failures, Sentinel Event Alert, Issue 37, Sept. 6, 2006, http://bit.ly/857SMq.
A problem in assessing the extent of possible liability is that while some dangers may be present and known, such as an earthquake in Los Angeles or a flood in New Orleans, the probability of such events occurring may be low. For example, a flooding event similar to the one caused by Katrina had not previously occurred in the modern history of New Orleans, largely as a result of levee construction by the U.S. Corps of Engineers. The low likelihood of some disasters complicates the disaster planning since the process must necessarily include 50 or 100-year events potential that may bring disaster far in the future. How should a hospital weigh improbable events when making costly renovations to its existing generation system or adding cost to a new installation, especially since the severity of the consequences of the event is also unknown?
In the LaCoste case, the Pendleton Hospital’s planning process did consider the risk of a flood and the evidence of that forms part of the case presented by the plaintiffs in the lawsuit. Three years prior to Katrina, a New Orleans city health official questioned city hospitals as to which of their emergency generators would be subject to failure in the event of a flood in light of the experiences of the Texas Medical Center, when emergency generators were flooded during Hurricane Allison. The Pendleton Hospital responded that one of the of the generators was on a roof but the other, located lower, would be non-functional in 2 feet of water. At the time a Pendleton Hospital official estimated that it would cost approximately $7.5 million to relocate the generators and fuel supply and take other protective measures, but that project was never done. It appears that other New Orleans hospitals with facilities located below potential flood levels also did not take such steps either in light of the prohibitive cost.
Since a lesson of these disasters is that backup generation may be required to operate for extended periods of time when deliveries of diesel fuel are unavailable, siting and constructing on-site storage for a substantial amount of fuel presents an array of questions and difficulties. Backup generation operated over a prolonged period of time can consume great amounts of fuel. During a 38-day post-flood recovery period at the Memorial Hermann Hospital campus in the Houston area, 36 portable generators consumed an estimated 10,000 gallons of fuel each day.
The disconcerting reality confronting hospitals is that the cost of not anticipating disasters might be far greater than the cost of providing appropriate protection for their emergency generators and sufficient fuel for prolonged operation. Health-care facilities should now take potential liability into account in any cost-benefit analysis of providing protection for their emergency generation systems and providing for a sufficient on-site supply of fuel. This column does not consider the availability or cost of securing insurance, but the universe of costs addressing potential liabilities must include the availability and cost of insurance.
A consequence of our system of law demonstrated by this New Orleans case is that regardless of their likelihood certain risks may be elevated above others as a result of liability. Despite the fact that a continuous supply of electric power is important to virtually every aspect of a health-care facility’s ability to provide patient care, it is clear that additional monies invested in emergency generation systems to protect against remote disaster events might well detract from a hospital’s ability to provide other urgently needed services. While there is no ready solution to this problem, engineering, medical. and legal evaluation of the risks and possible remedies is essential.
This article and the information in it do not constitute legal advice, is not intended to be comprehensive and is provided for informational purposes only. Readers should consult with their legal counsel for advice regarding the information contained herein.