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Mold lawsuit highlights serious risk to patients, liability
Families claim mold from construction killed pediatric cancer patients
The deaths of three young cancer patients within a month of each other at St. Joseph's Hospital in Tampa, FL, were caused by toxic mold released during a hospital construction project, according to a lawsuit brought by the parents. Their claims against the hospital could result in a significant payout, and the case is getting the attention of health care risk managers across the country, who are suddenly wondering if they are doing enough to prevent and control the risks from toxic mold in their facilities.
The hospital is facing a daunting adversary in this case. The families are represented by Tampa attorney Steve Yerrid, JD, well known in the legal field as one of the lawyers who took on the tobacco industry and won big. That case ended in a settlement in 1997 that awarded the state of Florida $13 billion and Yerrid more than $200 million in fees. Yerrid says he took this case because of what he describes as egregious negligence by the hospital.
Yerrid says the three young patients were exposed to toxic mold by a hospital construction project that was ongoing during their admission. With weakened immune systems, they were killed by the fungus in the air, he says.
The lawsuit claims that the hospital did not adequately protect the children from the contaminated dust and airborne particles created by demolition and the removal of plaster walls and ceiling tiles. St. Joseph's released a statement saying the hospital does use barriers to keep airborne contaminants out of patient areas during construction projects, and filters also are used. The construction was part of a $1 million renovation to the children's oncology center, which tripled the size of the outpatient area where pediatric cancer patients receive chemotherapy.
Yerrid points out that, unlike many malpractice cases, this case does not allege any negligence or wrongdoing by the clinical staff. Rather, the lawsuit claims that the fault all lies with the hospital itself, which it claims, undermined the good work of the clinicians by not controlling the mold.
"As a matter of course, cancer patients frequently get infections. But when construction occurs, there must be an awareness that the likelihood of fungi being introduced to these poor patients is certainly and significantly increased," he says. "It is well established that this is a risk. It is required that there be protocols in place and that they be rigorously followed."
The case probably will involve debate over how well the protocols were followed, Yerrid says. He says he will make the argument that the protocols for controlling construction dust are not especially complex or difficult to carry out, yet the hospital failed to do so.
"The message for risk managers ought to be that the simple things that you can do to lessen the risk and the liability exposure should be done without fail," he says. "We worry and fret over the huge things - the complicated delivery of a baby, the transplant procedure, the chronically ill patient - and those things receive great attention. But sometimes the simple things can cause tremendous problems."
Keith Brown, JD, a senior attorney with the New York City Law Department, says the risk from mold lawsuits is "enormous" for hospitals. Mold lawsuits are part of the "toxic tort" area of law, he explains, which began with asbestos litigation.
"Hospitals clearly have an obligation to prevent this kind of exposure, and the trend is for the personal injury bar to pursue this vigorously," Brown explains. "My experience has been that risk managers are much more concerned with medical malpractice, and toxic tort seems to go by the wayside. You hear a lot about medical malpractice and insurance, but you hardly hear any talk or resources going to the environmental concerns like mold exposure."
To address the concerns, Brown says risk managers should be in close contact with the maintenance department and require regular inspections of the ventilation system and the infrastructure, with reports on file to prove that you were doing inspections and making a good-faith effort to deter and detect mold exposures.
"When you can prove that you did the inspections and nothing turned up, you're OK," he says. "It's when you didn't even bother to check, or you found something and didn't act on it, that liability is imposed by the law."
Tara Fappiano, JD, a partner with Havkins Rosenfeld in White Plains, NY, with a specialty in mold litigation, and fellow partner Gail Ritzert, JD, in Mineola, NY, say risk managers must be aware of all guidelines pertaining to mold abatement and control. Examples include the federal Environmental Protection Administration (EPA) guidelines, the City of New York's Guidelines on Assessment and Remediation of Fungi in Indoor Environmental Environments, and the Centers for Disease Control and Prevention's revised 2001 guidelines, which include planning preventive measures for infection control before hospital construction projects begin.
By familiarizing themselves with the applicable guidelines, Ritzert says, risk managers put themselves in a position to take the steps necessary to prevent or minimize the exposure. They also are in a position to incorporate specific insurance recommendations in vendor and subcontract agreements. For building owners, leases must be changed to reflect need for coverage. Risk managers also should familiarize themselves with the condition under which mold grows and how it spreads to have an idea on what risks lurk behind the walls and ceilings, she adds.
Notify insurer immediately
Fappiano says the first and most natural response when one is faced with the presence of mold is to try to rid the property of the condition immediately. While that is the right idea, she says risk managers should realize there are other important steps that need immediate attention.
"Notice should be given to an insurance carrier as quickly as possible to avoid any argument of late notice. The carrier should also be given the opportunity to inspect and test the condition before any remediation is done. From a health perspective, and because often times mold conditions have not reached a toxic level, this will ensure that appropriate actions are taken to address the problem," she says. "If the carrier disclaims coverage or opts not to test, such testing should still be done. Then, if necessary, it is important to enlist the services of a qualified abatement contractor to remediate the condition."
Post-remediation testing, including surface and air sampling, also is essential to ensure that any potential health hazards have been eliminated, Fappiano says. While the connection between the presence of mold and resulting injuries has been difficult to prove, such testing arguably provides objective evidence that the hazard no longer exists, if there was a hazard in the first place.
On the coverage end, it is essential that the risk manager review the insurance policy very carefully. After a spate of mold claims and litigation, many insurers implemented a mold exclusion to most general liability policies. Even many environmental insurance policies - ordinarily specifically drafted to cover pollution exposures - inserted mold and fungi exclusions to their definition of pollution conditions.
If a facility wants to purchase mold coverage, they often must affirmatively provide a copy of their mold management plan to the underwriters. If mold is a concern or consideration, the risk manager must ascertain how each exclusion may apply and take the necessary steps to secure environmental coverage. Additionally, if subcontractors are hired to perform work in an area where mold may be an issue, the risk manager must review the subcontractor's entire insurance policy to ascertain the coverage and exclusions included therein.
The Tampa lawsuit comes as no surprise to the industry experts and those individuals involved in compliance, says Marlene Linders, president and CEO of Philders Group International, a consulting company in Heathrow, FL, that addresses mold toxicity. Linders says the emergence of both air- and waterborne pathogens, chemical exposure, and infectious diseases are on the rise. The importance of employee, occupant, and patient safety - and exposure to those biologicals and chemicals - has become a major concern, especially during health care construction, she points out.
The need for training and certification involved in the construction process (contractors, builders, developers, architects, engineers, subcontractors, suppliers, and attorneys) is essential, Linders says.
"Contractors are slack on meeting compliance, as well as adherence to requirements. There are no applicable construction standards or protocols for project safety. There are also no specific training and certifications offered unless hospitals engage contractors in their own training program," she explains. "This is neither feasible nor cost-effective for them, so for too many hospitals, the entire process is without any type of checks and balance during the construction activities."
For more information on mold and liability, contact:
Tara Fappiano, JD, Havkins, Rosenfeld, Ritzert & Varriale, White Plains, NY. Telephone: (914) 682-6816. E-mail: firstname.lastname@example.org.
Marlene Linders, President and CEO, Philders Group International, Heathrow, FL. Telephone: (407) 562-1625. E-mail: email@example.com.
Gail L. Ritzert, JD, Havkins, Rosenfeld, Ritzert & Varriale, Mineola, NY. Telephone: (516) 620-1710. E-mail: firstname.lastname@example.org.
Steve Yerrid, JD, The Yerrid Law Firm, Tampa, FL. Telephone: (813) 222-8222.