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Mold management plan a must for hospitals
Any facility subject to water intrusions from flooding, faulty HVAC systems, or any source of water into the building envelope should have a written mold management plan, says Suzanne M. Avena, JD, an attorney with Garfunkel Wild in Great Neck, NY, specializing in environmental law.
Regular facility inspections for mold and moisture should be conducted and protocols put in place on how to address obvious mold within 48 hours, she says. Phone numbers of consultants to call and a designation of internal supervisors assigned to address the issue should be clear. Immediate and effective communications by hospital administration with affected patients and personnel is key.
"I have counseled hospital clients which have discovered mold conditions too late, wherein the employees had already called OSHA and there was a lot of misinformation being disseminated by disparate hospital parties as to the extent of the problem," Avena recalls. "As soon as we took control of the problem, a proactive, corrective plan was in place, and regular communication was conducted with OSHA and hospital personnel to ensure that the health of the occupants was being addressed. Copies of the mold abatement report, including air sampling clearance results, were made available upon request, and medical monitoring was conducted of those occupants who felt they may have been unduly exposed to the mold."
Other liability that mold presents is during the sale or leasing of facilities. Avena says she has represented facilities in New York City that are over 100 years old, wherein certain portions of the building - although vacated - were in decrepit condition and had to either be remediated or demolished because of mold and other environmental issues before transfer of ownership interest could take place. There are requirements under financial disclosure laws, such as Financial Interpretation Number (FIN 47), whereby the hospital can be exposed to liability if it fails to disclose a cost associated with the restoration and eventual retirement of certain assets such as buildings and equipment.
In addition to lawsuits from both patients and employees, there is potential liability from regulatory agencies, which can initiate enforcement actions against the hospital, Avena says. Such actions may include financial fines and penalties, in addition to required corrective actions. Even though there are no federal laws or regulations pertaining to mold, some states and municipalities have laws and/or guidelines for institutional settings such as schools and hospitals.
"If violations are particularly egregious, the hospital can even be considered criminally liable. If there is substantial physical exposure to occupants, patients can initiate common-law tort actions against the hospital," Avena says. "However, it is not easy to prove causation of injuries as resulting from mold exposure. So many other causes can result in the respiratory and cognitive deficiencies that are symptomatic of toxins from mold. However, just the specter of litigation is a blemish to the public image of health care facilities. Furthermore, the legal and frictional costs of litigation - in terms of taking time away from regular business to respond to law suits - are very expensive and worrisome to administration."
For more information on mold management, contact:
Suzanne M. Avena, JD, Garfunkel, Wild & Travis, Great Neck, NY. Telephone: (516) 393-2229. E-mail: email@example.com.