Deborah Gordon and Karen Harris Quoted in Healthcare Risk Management

Healthcare Risk Management's November issue ("Special Report: Lessons from Hurricane Katrina") highlights how the hurricane shows faults in hospital planning and potential liability. An article ("Liability depends on planning, executing plans") noting that "Nursing home deaths bring criminal charges" points out "One such example might be the St. Rita's nursing home outside of New Orleans. Deborah Gordon, JD, a partner with the law firm of Seyfarth Shaw in Chicago, says the story of St. Rita's is shaping up as a good example of how to create the most liability for your organization. Initial reports indicate that the facility had evacuation plans that satisfied all regulatory requirements, but local authorities report that the owners never implemented them." . . . "In terms of your potential liability, it's almost worse to have elaborate plans and never put them in place than it is to never have a plan, Gordon says. `Clearly, they had a plan in place and it didn't get done when the time came,’ she says. ‘Any plaintiff's attorney is going to hold that plan up in court and say, “Here's what they should have done; and because they didn't, these people died.”'” . . . "If the owners of St. Rita's are found guilty of criminal conduct or an egregious case of negligence, the facility's insurance probably will not cover any civil lawsuits arising from the incident, Gordon says."

A second article entitled "Best practices checklist may be used in court" notes that "For any claims arising after an evacuation or disaster involving your organization, the key issue may be whether you prepared as well as you should have and then executed your plan effectively." The article notes that "Courts will not be dissuaded by the fact that the AHLA (American Health Lawyers Association) checklist is not a legal or accrediting requirement, says Deborah Gordon, JD, a partner with Seyfarth Shaw in Chicago. ‘The checklist could be viewed as a set of 'best practices' guidelines. If a hospital in the affected area was not compliant with either state law requirements or accreditation entities' requirements, clearly they will have potential liability. But I also would argue that if they did not also adopt the AHLA's emergency preparedness checklist, there is potential liability.’"

In addition, "Health care providers have a duty not just to comply with the appropriate local, state, and federal requirements for emergency preparedness, but also to keep up with the rest of the industry, says Karen Harris, JD, also a health care attorney with Seyfarth Shaw. The checklist represents a collection of best practices in the industry, so it is not farfetched to think that courts will see it as the expected level of compliance for health care providers, she adds."