Were hospitals responsible for patient deaths during Hurricane Katrina?

A jury is about to decide how far hospitals have to go to protect themselves against natural disasters.

It all starts in New Orleans, during the Hurricane Katrina disaster. Hospital generators were not protected against floods, and predictably, that contributed to the loss of power during the category 5 hurricane. If all hospitals were to protect their generators appropriately, it’s estimated that it would cost millions to do so.

There are now about 200 lawsuits against medical institutions in Louisiana alleging that they should have done more to protect themselves against the disaster. And, according to the state Supreme Court, these are considered “general negligence” claims, as opposed to medical malpractice ones, which would have been subject to a cap.  This substantially raises the hospital’s liability.

If successful, there are far-reaching complications for already cash-strapped hospitals. How far should they go to protect themselves against every conceivable catastrophe? What about a terrorist attack, for instance?

A line has to be drawn somewhere, as it is impossible for medical institutions to foresee every scenario. And we’re about to find out where it lies.

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  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    Yet we don’t need any tort reform.

  • Eric T.

    A line has to be drawn somewhere, as it is impossible for medical institutions to foresee every scenario.

    Flooding in New Orleans wasn’t exactly unforseeable.

    The issue of forseeability is a critical one in negligence cases. Thus, if an event was unforseeable, the suit would be thrown out on that basis.

  • twaw

    eric:
    I’m just curious as to what exactly qualifies as “unforseeable?’ An earthquake in New Hampshire? Seismologist state that since there hasn’t been one for a long time (200 years) it’s due. Volcanos in New York? Hollywood “predicts” that one. Nuclear detonation/dirty bomb in Chicago? We know the terrorists are working on this. Tsunami in all East coast cities (we know there is a crack somewhere near the Azores)? An asteroid hit? Supervolcanos? All of these natural disasters have been predicted and are “forseeable.” When does probability play a role? And if probability does plays a role, does not a 100 year flood/hurricane count for something?

  • http://fertilityfile.com IVF-MD

    So then the logical question would be what is the definition of forseeable?

    It would be wrong to say that for purposes of this definition that anything that has every happened before is forseeable.

    So if I’m a small business owner within 5 miles of a major airport, I would potentially be liable if I didn’t have special costly construction measures in place to armor my building in the event that a chunk of debris from a terrorist-exploded plane crushes someone in my business.

    What’s really important to ask here and in other areas of national policy is do we let conditions prime for lawsuit abuse further harm our economy and jack up our healthcare costs? Now you see why tort reform is one overall positive way to improve things for everyone. (well everyone except for those who stand to profit from lawsuit abuse). Right?

  • Eric T.

    I’m just curious as to what exactly qualifies as “unforseeable?’

    There is a great deal of law on the subject. Sometimes the issue is so remote that the judge will decide it as a matter of law (such as the plane crash example) and toss the suit out. Other times it is an issue of fact that a jury must resolve.

    Your next question, I presume, is what law does the jury apply to the particular facts of the case. Glad you asked.

    These are the instructions that a jury would be given (taken from the pattern jury instructions in New York), and they might be modified to fit the unique facts of any one particular case:

    Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but be probable.

    There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in the light of what could have been foreseen.

  • ninguem

    After Anna Pou, the Bar is seeking a new low in Louisiana.

  • Primary Care Internist

    maybe families of the victims should be sued since their houses were unsuitable for such a foreseeable event, and therefore led to crowding of ERs and hospitals, and consequences to the staffs of those facilities.

  • http://www.epmonthly.com/whitecoat WhiteCoat

    Can’t wait to see how long it takes before the plaintiffs attorneys start suing the hospitals and nursing homes in Haiti. After all, couldn’t they have built better hospitals knowing that earthquakes could occur?

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    My thoughts exactly, WhiteCoat.

    And here’s a good reason to wonder: Elizabeth Edwards said today that John-Boy “the channeler” is already there. He fled the country to help poor people the day before he admitted paternity of Frances Quinn Hunter.

  • http://www.riskandinsurance.com Matthew Brodsky

    Seems like most hospitals are pretty prepared for such disasters and ought to be because of Joint Commission accreditation, according to my sources: http://www.riskandinsurance.com/story.jsp?storyId=323706287

  • concerned, educated patient

    For a long time in my field, we’ve known better than to place servers, mainframes, or other computers critical to an organization’s operations in a basement. Floods are expected (either external floods from rain, etc., or internal water pipe breaks). I’d consider it negligent for an IS professional advise placing critical computing equipment in a basement or to not vigorously oppose such a placement.

    In tornado alley, critical computing equipment is often placed into a protective environment … say in a bermed, concrete bunker arrangement or in a specially constructed safe-room within a building.

    If the organization is expected to lose millions of dollars per hour of downtime, it’s reasonable to invest significantly in protecting that equipment (think about what would happen if the computing equipment of, say, Amazon, eBay, or WalMart were out of commission).

    Seems like that should apply to generators in hospitals. People are vulnerable when hospitalized. Shouldn’t we protect them at least as much as we protect business revenue? Isn’t human life worth the investment? Shouldn’t we significantly penalize those who don’t make that effort?

  • Peter

    “Were hospitals responsible for patient deaths during Hurricane Katrina?”

    Nope. Hurricane Katrina was responsible for patient deaths. Hospitals were responsible for patients living. A tradegy that not all could be saved, but that does not translate to ‘The hospital could not save my wife/husband/son so they therefore must be guilty.”

  • Anonymous

    While all events cannot be predicted there are capable risk assessment formulas in place that evaluate possible disaster scenarios for a community. Louisiana certainly should have planned for hurricanes and floods.