The biggest liability risks in the ED during disasters

Plan must be well-practiced to withstand allegations of poor care

By Staci Kusterbeck, Contributing Editor

To avoid legal problems for your ED during disasters, it's not enough to have a good plan in place—you must ensure that staff are familiar with procedures and follow them.

"If a health care facility doesn't have policies and procedures, then it could be considered negligent," says Cheryl S. Camin, an attorney with the Dallas office of the national law firm Fulbright & Jaworski. Camin works closely with health care providers in legal compliance matters. "But the policies and procedures can't be something that a health care provider prepared years ago and has not looked at since. People need to know what policies are there and practice using them."

In the eyes of a jury, a breach of policy may be worse than having no policy at all. That's why it's a mistake to make policies so specific that it's almost impossible to comply with them, says Camin. For example, instead of stating that something should be done within a specific time frame, use the terms "as soon as possible," or "take immediate action."

The best way to reduce liability risk is to document, says Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center. "At first glance, one would think this would be impossible during a disaster," she acknowledges.

However, individuals who want to volunteer help during a disaster can act as scribes, suggests Schneider. She recommends assigning a scribe to transcribe items given verbally by the ED physician or team leader. "In teaching hospitals the scribe can be a medical student, and in community hospitals, perhaps floor secretaries or retired nurses," says Schneider.

EDs can prepare for this by creating a disaster flow sheet and keeping them on hand along with patient identification tags and other disaster supplies, adds Schneider.

Document the patient's name, or what is known of the name, who treated the patient, and the amount of history available. "After the disaster, the director should make a record of how many patients were treated in what period of time by what number of staff," says Schneider. "This will help to make the case for limited resources if that played a part."

The patient's record should state "care given during disaster" and a separate file should be kept documenting the actual events during the disaster to reference if necessary, says Schneider. Document facts such as number of patients and conditions in the ED, including what staff believed at that moment in time, she advises.

"If the team felt patients were not going to make it and were suffering badly it should be noted," says Schneider. "If resources were too thin to save all, it should be included."

Post-Katrina Impact

During Hurricane Katrina, large numbers of evacuees sought refuge at hospitals, and many arrived in the ED. "Some of these people were sick and some not. It required significant resources to triage these people," says Donna Klein, managing partner and head of the healthcare section at McGlinchey Stafford in New Orleans. "Also, there were drug seekers entering EDs to steal drugs, which strained an already strained security force." A total breakdown in communications hindered the transfer and evacuation of patients, and made it nearly impossible to maintain documentation for every patient.

Although there haven't been any post-Katrina lawsuits dealing specifically with the ED, there have been many lawsuits filed for failure to follow a facility's disaster plan, failure to have an adequate disaster or evacuation plan, euthanasia or mercy killing, and inadequate security resulting in harm to patients, says Klein. She suggests the following actions to reduce liability risks:

  • Make a decision in advance as to whether the hospital or the ED will continue to operate, or whether it will evacuate everyone pre-storm.
  • Secure controlled substances.
  • Make arrangements in advance for transfer agreements with other facilities.
  • Develop a form to serve as an abbreviated medical record. During Katrina, there were significant problems at various staging areas, such as when patients arrived at the airport with literally no information accompanying them. "Something that is practical under the circumstances to reflect the patient's condition and what has been done needs to accompany the patient," says Klein.

Your policy should specify the individuals with authority to make administrative, legal and medical decisions during a disaster, says Bettina Stopford, RN, FAEN, PMP, director of public health and medical emergency preparedness for Science Applications International Corporation's Homeland Security Support Operation, based in McLean, VA.

"Having a solid, all-hazard operational plan, that is flexible enough to rapidly adapt to many contingencies, and that is practiced and known by all involved in it, is critical," says Stopford.

ED managers should work with hospital legal departments to ensure that the decision-making entity is well-documented and accessible, recommends Stopford.

For the ED, this might be a nursing director, nursing administrator, chief medical officer, or attending physician. That individual must be capable of making tough decisions, such as how to use limited resources, based on national standards of care and disaster response best practices, says Stopford.

Liability is reduced if the facility can show it is compliant with national standards and legislation. For example, your ED must adhere to the Joint Commission on Accreditation of Healthcare Organizations' emergency care standards, which includes using an incident command system, planning, training, and exercising with community responders, and having proof of plans for emergency evacuation and decontamination along with the necessary training and equipment.

"It would be nearly impossible to plan for every unforeseen contingency," Stopford says. "But having a decision making administrative capability rapidly available during a disaster is key to reducing liability."

More Leeway?

"During a disaster, the standard of care in certain instances would change," says Sue Dill, RN, MSN, JD, director of hospital risk management for OHIC Insurance Company in Columbus, OH.

Although state and federal regulations don't go out the window entirely during disasters, there is some flexibility in the requirements, says Camin. "To the extent that health care provider can stay 100% compliant with the law, of course you want to do so. But the government powers that be do allow some flexibility here and there."

What's reasonable on a normal day versus when a hurricane hits are two different things. "But even so, you're going to have to prove in retrospect that what you did was reasonable under the circumstances," Camin says.

Your policy should be clear about the specific circumstances in which different procedures are acceptable. "You will have to define when staff can kick in the emergency steps that might be outside the norm," she says.

In the event a malpractice lawsuit is filed and goes to trial, jurors would be more likely to sympathize with an ED nurse or physician under disaster conditions than they would otherwise. "They realize that things change when a hurricane hits. Had this same problem occurred during normal circumstances, a jury would probably be tougher on that health care provider," says Camin.

Here are some examples of accommodations in federal laws that could affect care in the ED during a disaster:

• Health Insurance Portability and Accountability Act (HIPAA). The Department of Health and Human Services' Office of Civil Rights issued a bulletin on disclosing protected health information during emergency situations, which emphasizes the broad range of permissible disclosures that covered entities may make in response to the needs of evacuees. (To download the bulletin, go to

To comply with HIPAA, disclosures are permitted only if necessary to provide treatment, and otherwise you can tell people whether an individual is at your ED and his/her general condition, but nothing more.

However, during a disaster, you can provide information about a patient to locate a family member or anyone involved in the individual's care. You can also share patient information with anyone to prevent or lessen an imminent threat to the safety of a person or the public.

• The Emergency Medical Treatment and Active Labor Act (EMTALA). Know where to get legal information that would affect your ED during a disaster, such as knowing if EMTALA has been suspended, says Stopford. "The hospital should be able to query the state department responsible for this, usually through their local or county emergency management or public health agency," she says. "It is different in states and counties, but that decision-making body should be contacted in advance."

The federal law requires that a medical screening examination (MSE) be done on all patients who present to the ED requesting care or treatment. "But when there is a national disaster and 400 people arrive at the emergency department, it may not be humanly possible to provide a normal medical screening exam," says Dill.

EMTALA does not apply when patients are transferred to another location to receive a MSE when a state emergency preparedness plan is in effect or for the transfer of an unstable patient if the transfer arises out of hurricane-related emergency circumstances.

"Under normal circumstances, providers would be sanctioned if they were to redirect a patient for MSE who wasn't stabilized," says Camin.