Get documents about "The Greatest Good for the Greatest Number Implications of
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The Greatest Good for The Joint Commission on grapple with this complex issue, It is possible that disaster vic-
the Greatest Number: Accreditation of Healthcare this article presents an overview tims and their family members
Implications of Altered Organizations, in its report of significant issues that will be are not inclined to sue for care
Standards of Care Healthcare at the Crossroads: implicated by the need for rendered because they realize
Steven D. Gravely, JD, MHA* Strategies for Creating and “altered” standards of care and that under the circumstances,
Erin S. Whaley, JD, MA** Sustaining Community-wide one state’s mechanism for medical professionals are doing
Troutman Sanders LLP Emergency Preparedness Systems, addressing these issues. the very best that they can.
Richmond, Virginia recognizes that healthcare
II. Medical Malpractice While this may reassure some,
providers should be prepared
Liability for Using most in the medical field remain
to implement systems that will
I. Overview “Altered” Standards wary. As a result, we must then
allow for a “graceful degrada-
of Care determine whether the law will
Most experts, scholars, and tion” of care as opposed to a
hold providers liable for imple-
healthcare providers agree that catastrophic failure of services In our litigious society, health-
menting “altered” standards of
during a disaster or emergency in disasters.3 One aspect of a care providers are understand-
care during a disaster. Healthcare
in which there are mass casual- “graceful degradation” may ably concerned about potential
providers are required to com-
ties, healthcare facilities will not mean that care and access to legal liability for the care they
ply with the applicable standard
be able to provide the level of caregivers is rationed to prevent render on a daily basis. These
of care when rendering medical
care to which they are accus- the provider from becoming com- providers understand that they
services. Failure to comply with
tomed. Instead, hospitals will be pletely “incapacitated and unable have a duty to render care in
this standard is a breach of the
forced to implement “altered” to deliver care of any kind.”4 accordance with the applicable
provider’s duty to the patient
standards of care as a way of standard of care. Failure to do
There is no consensus about and may give rise to malprac-
dealing with shortages of per- so can result in malpractice lia-
what is meant by “altered” stan- tice liability. The legal “standard
sonnel, equipment, and time. bility. “Altered” standards of
dards of care. One common of care” that is applied in med-
While the term “altered” stan- care, which by definition do not
characteristic of any “altered” ical malpractice cases is a crea-
dards of care has not been meet the traditional standard of
standard discussion, including ture of state statute. That being
defined, it is a recognized con- care, implicate and exacerbate
the three discussed above, is the said, most state statutes require
cept in the emergency response these concerns so much so that
recognition that, during an practitioners to render care
and preparedness field. some healthcare providers have
emergency or disaster in which using that degree of skill and
indicated that they will not pro-
The Agency for Healthcare there are mass causalities, there diligence used by a reasonably pru-
vide care in a setting where
Research and Quality (AHRQ) will be a shortage of critical dent practitioner in the same special-
“altered” standards are required.
has issued a report entitled resources. The response to such ty under similar circumstances.7
Altered Standards of Care in a shortage will necessarily involve But are these fears well found-
Mass Casualty Events in which ed? The fact is that there has The fact that the legal standard
rationing. “Altered” standard of of care accounts for the circum-
they assume “altered” standards care discussions, then, are really not been significant litigation
to mean “a shift to providing against healthcare providers in stances under which the care
discussions about how hospitals was rendered bodes well for
care and allocating scarce equip- and other healthcare providers the wake of recent emergencies
ment, supplies, and personnel in and disasters. Indeed, a thor- providers as it is the emergency
will allocate scarce critical or disaster circumstances sur-
a way that saves the largest resources in the face of mass ough search of case law reveals
number of lives in contrast to no reported cases for medical rounding the care rendered that
casualties. It is in this context gave rise to the need to employ
the traditional focus on saving that the remainder of this paper malpractice cases arising out of
individuals.1 Like AHRQ, the emergency or disaster circum- an “altered” standard of care.
will use the term “altered” stan- Presumably, so long as providers
Homeland Security Council dard of care. stances like the Oklahoma City
chose not to define an “altered” bombing in 1995, September can prove that they acted like a
standard of care in the Implem- American healthcare providers 11th, the series of hurricanes reasonably prudent provider in
entation Plan for the National are unaccustomed to explicit that devastated Florida in 2004, the midst of a disaster, they will
Strategy for Pandemic Influ- discussions of rationing care. This and most recently Hurricanes not have breached their duty
enza, opting instead to conclude makes it difficult to embrace this Katrina and Rita. There are and will not be held liable for
that “the standard of care will idea in their emergency pre- anecdotal reports that malprac- malpractice. To ensure that these
be met [during a pandemic] if paredness planning. For some tice claims have been filed in circumstances become part of
resources are fairly distributed providers, this reluctance has the wake of Hurricane Katrina, the case, providers should ensure
and are utilized to achieve the turned into planning paralysis.5 but the ultimate disposition of that whenever “altered” stan-
To help providers begin to dards of care become necessary,
greatest benefit.”2 these cases may be years away.6
10 Hospitals and Health Systems Practice Group
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the circumstances are appropri- ed, however, those who take standards of care are designed shield of immunity. Under
ately and thoroughly document- part in the creation of the stan- to allocate scarce medical many Emergency Services
ed. Documentation is difficult in dard will likely become the resources, it may be reasonable and Disaster Laws, those
the best of situations; therefore, experts. This is a significant to think that the Governor complying with the law,
hospitals should include in their issue to keep in mind when could proclaim an “altered” stan- emergency declarations, or
disaster planning policies, proce- choosing the individuals who dard of care through an emer- engaged in emergency servic-
dures, and templates to help will craft “altered” standards. gency declaration. es activities will be immune
ensure that this documentation from liability for injury to per-
III. Emergency Services The content of such a declara-
will be created even in the midst sons or property that results
and Disaster Law tion will be uncertain until it is
of the disaster. from such activities. Health-
Protections actually issued in the midst of
care providers within the
Because in most medical mal- an emergency. There is infinite
There are various tools that are affected areas who comply
practice cases lay juries cannot variation on how these declara-
currently available and that hos- with the “altered” standard of
be expected to know how “rea- tions could be worded, ranging
pitals can use to assuage liability care issued by the Governor
sonably prudent” doctors would from a generic statement that,
concerns connected to the use through a declaration of
have treated the plaintiff, expert as a result of the emergency
of “altered” standards of care. emergency would presumably
testimony is required to educate conditions and resulting scarcity
In addition to the use of poli- be able to take advantage of
and assist the jury in its deci- of resources, “altered” standards
cies, procedures, and templates this type of immunity.
sion-making.8 When the con- of care will be implemented in
discussed above, a declaration
duct in question is clearly neg- affected jurisdictions to a much • It would ensure that health-
of emergency under a state’s
ligent, as in a case where a more specific articulation of actual care providers across affected
Emergency Services and Disaster
defendant doctor leaves a hypo- “altered” standards of care. This areas were all providing the
Law may provide protection for
dermic needle in the plaintiff’s variability in the content of emer- same care to similar patients.
healthcare providers who must
neck at the close of surgery and gency declarations gives little com- Since theoretically no patient
employ an “altered” standard of
it is not discovered until months fort to healthcare providers. will receive less care than any
care in the face of an emer-
later, courts may not require other patient, it may be diffi-
gency or disaster. The key point is that the specific
expert testimony to establish a cult for individual patients to
content of the Governor’s emer-
standard of care.9 In most cases, Emergency Services and Disaster prove negligence.
gency declaration will determine
however, expert testimony is Laws typically set forth the statu-
its legal significance. General Healthcare providers should
typically presented by the plain- tory framework for the Governor
statements about “emergency begin discussing solutions to the
tiff to establish the appropriate and the executive heads or gov-
conditions” may be too broad “altered” standard of care issue,
standard of care, a deviation erning bodies of the political
to have any significant legal including embarking on discus-
from that standard, and that subdivisions of the state to deal
effect. Emergency declarations sions with the Governor’s office
such deviation was the proximate with emergency situations caused
that are very specific and impose as to the exact content of such a
cause of the plaintiff’s injury and by major, natural, or man-made
“altered” standards could be ben- declaration and creating tem-
damages.10 The defendant, of disasters or a local emergency.
eficial for the following reasons: plate declarations that can be
course, presents his own experts Among their stated purposes,
quickly completed in the midst
to rebut those experts presented these laws confer upon the • It would definitively establish
of an emergency.
by the plaintiff. state’s Governor specific emer- an “altered” standard of care
gency powers, including the for healthcare providers within IV. Scope of Practice
As in the typical malpractice ability to proclaim and publish the area of the declared emer- One key component of a stan-
case, in an “altered” standard of rules, regulations, and orders as gency, negating the need for dard of care is personnel—who
care malpractice case, the par- are needed to respond to the expert testimony on this subject will provide the needed care?
ties will be required to present emergency. In some states, this during a malpractice case. During an emergency or disas-
expert testimony. This require- power to proclaim rules also Experts would still be needed ter, there will be a shortage of
ment may present a significant includes the power to waive state to opine on whether the personnel at all levels. As a
problem for both the plaintiff law and control, restrict, or allo- physician’s actions complied result, physician assistants may
and the defendant, as there are cate resources as part of the with the “altered” standard be required to perform proce-
no real experts because “altered” state’s emergency response. A established by the declaration. dures that are usually only done
standards of care are used infre- state’s emergency response to a
• It may cloak healthcare by physicians. Nurses may have
quently, if at all. To the extent mass casualty disaster will surely
providers complying with the to perform tasks traditionally
“altered” standards of care are include the provision of health-
formally created and promulgat- “altered” standard with a
care services. Because “altered”
Continued on page 12
healthlawyers.org 11
Continued from page 11 including Medicare and Medicaid, difficult to formulate “altered” ly to occur, when a resource
within the bailiwick of physician only if a physician performed standards of care in advance.11 shortage has occurred, which
assistants. Licensed practical the procedure. Where this is not Instead, some are suggesting principles should inform alloca-
nurses may perform as registered feasible in the midst of a disas- that it will be most beneficial to tion decisions and how those
nurses. Having these healthcare ter and a nurse or physician design a process for identifying principles can be translated and
providers perform tasks histori- assistant performs the task the content of such standards. reflected in the care rendered
cally outside the scope of their instead, the hospital may not be That process can then be uti- during a disaster. This proactive
practice may be necessary to be reimbursed. If this happens for lized to develop “altered” stan- planning is likely to be a key
a part of any “altered” standard the duration of the disaster, the dards as the need arises. element of a successful defense
of care, but it still presents a host hospital could find itself in seri- against any potential malprac-
ous financial trouble. Resolution This is the exact approach that tice action.
of concerns. the Virginia Department of
of this issue will likely require
Liability is of course a concern for Health (VDH), in conjunction VII. Conclusion
federal intervention.
these health professionals. The with the Virginia Hospital and During a mass casualty disaster,
protection tools previously dis- Hospitals also understand that Healthcare Association (VHHA), there will be a shortage of
cussed can also be used to protect documentation of care rendered has chosen to take. Recognizing resources that are necessary to
all types of healthcare providers is critical when seeking payment that issues surrounding “altered” provide the medical care to
who are forced to practice under from insurers. Proper documen- standards of care were a signifi- which most are accustomed.
an “altered” standard of care. In tation is difficult to maintain cant concern for Virginia health- To deal with these shortages,
addition to this concern, health- during the best of times in a care facilities, VDH used a providers will have to allocate
care providers who render care hospital. It will be infinitely portion of its Health Resources resources in some systematic
outside the scope of their practice more difficult to maintain this Services Administration emer- manner. While these shortages
can be subject to disciplinary pro- during an emergency or disas- gency preparedness funds to are relatively foreseeable, many
ceedings through their respective ter. Understandably, healthcare engage Troutman Sanders to providers have not started plan-
Boards. To avoid this situation, providers will be focused on address these issues. ning for this eventuality because
the Governor may waive the delivering the best care to the
Troutman Sanders, in partner- of the numerous, complex issues
statutory and regulatory require- greatest number of individuals,
ship with VDH and VHHA, that are an inextricably linked to
ments related to the licensure of not with thoroughly document-
formed an “altered” standard of “altered” standards of care.
health professionals during a state ing this care in the chart.
care work group composed of These issues, including liability,
of emergency or declared disaster. Indeed, events may be unfold-
individuals from across the state scope of practice, and reim-
Along these same lines, the health ing so rapidly that a traditional
who represent various health- bursement, must be addressed
boards may be able to use emer- “chart” does not even exist at
care institutions, clinician groups, in each state to allow providers
gency procedures to expand the the time the care is rendered. It
emergency planning bodies, and to move forward with their
scope of practice to encompass is crucial that hospitals institute
the state government. The col- important emergency prepared-
new tasks necessitated by the policies, procedures, and prac-
laborative product of this work ness activities.
“altered” standards of care. If any tices that will help providers doc-
ument care while not detracting group, developed over a period
of these courses of action will be of several months, is a “Critical
undertaken during an emergency from their ability to render it.
Resource Shortage Planning
or disaster situation, it is important VI. Determining the Guide” that healthcare facilities * Steven D. Gravely has been a
that the details be discussed now, Content of an can use to help them begin partner at Troutman Sanders LLP
before the “altered” standard of “Altered” Standard thinking about “altered” stan- since 2000. He represents hospitals
care is necessary. of Care—Virginia’s dard issues now, before a disas- and other healthcare providers. He
Approach ter strikes. has served on several emergency
V. Reimbursement preparedness panels in Virginia,
Hospitals are understandably While it is commonly recognized The Planning Guide explicitly and is principle author of quaran-
concerned about liability for within the healthcare industry recognizes that healthcare facili- tine legislation that was passed by
healthcare providers practicing that “altered” standards of care ties have varying capabilities the General Assembly in 2004. He
outside of their traditional scope will have to be employed during and resources, which materially has a bachelor’s degree from the
of practice, but they are also a disaster, the exact nature of affect how best to respond to College of William and Mary, a
those standards is far from master’s degree in health adminis-
concerned about the resulting disasters. It provides a common
understood. Each disaster situa- tration from Virginia Commonwealth
reimbursement issues. For some process that facilities can follow University and a law degree from the
procedures, hospitals can obtain tion is unique, as is each health- to begin to identify which University of Richmond.
reimbursement from insurers, care community. This makes it resource shortages are most like-
12 Hospitals and Health Systems Practice Group
Hospitals
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** Erin S. Whaley practices health- 8 See Beverly Enterprises-Virginia,
care and corporate and securities Inc. t/a, ETC. v. Nichols, 247 Va.
law at Troutman Sanders LLP in 264, 267, 441 S.E.2d 1, 3 (1994).
Richmond. She holds bachelor’s
and master’s degrees in bioethics 9 See Dickerson v. Fatehi, 253 Va.
Hospitals and Health
and a law degree from the 324, 484 S.E.2d 880 (1997). Systems
University of Virginia.
10 See Bryan v. Burt, 254 Va. 28, Leadership 2006-07
486 S.E.2d 536 (1997).
11 Hick JL, O’Laughlin, DT.
“Concept of Operations for Triage
Endnotes of Mechanical Ventilation in an Brian D. Gradle
Epidemic.” Acad Emerg Med. 2006 Chair
1 Altered Standards of Care in Mass Feb; 13(2): 195-8.
Hogan & Hartson LLP
Casualty Events. Prepared by Health
Systems Research Inc. under
555 13th Street NW
Contract No. 290-04-0010. AHRQ Washington, DC 20004
Publication No. 05-0043. Rockville, (202) 637-5600 • bdgradle@hhlaw.com
MD: Agency for Healthcare
Research and Quality. April 2005.
(AHRQ Report) Marc D. Goldstone
Vice Chair - Publications & Editor
2 National Strategy for Pandemic
Tenet Health System
Influenza: Implementation Plan.
Homeland Security Council (May 500 W. Cypress Creek Road, Suite 700
2006) at 110. Fort Lauderdale, FL 33309
3 Available at www.astho.org/pubs/ (954) 351-3647 • marc.goldstone@tenethealth.com
Emergencypreparedness3-12-03.pdf
(page 26).
Marci Rose Levine
Vice Chair - Research
4 Id.
Sonnenschein Nath & Rosenthal LLP
5 AHRQ Report at 23. 1301 K Street, Suite 2800
6 Certainly, there has been post-
Chicago, IL 60610-4764
Katrina litigation including health-
(312) 832-4362 • MLevine@sonnenschein.com
care facilities. At least one civil
claim has been filed seeking to Richard L. Prebil
recover for a healthcare facility’s
failure to maintain electrical power.
Vice Chair - Educational Programs
[Estate of John Dunn v. Tenet Mid- Foley & Lardner LLP
City Medical, LLC, No. 2006-2341 321 N Clark Street, Suite 2800
(La. filed March 21, 2006)]
Chicago, IL 60610
Additionally, the Louisiana state
criminal prosecutor’s allegations of (312) 832-4362 • rprebil@foley.com
provider misconduct have been
well publicized. [Associated Press,
“Doctor, 2 nurses held in Katrina
Michelle A. Williams
deaths,” 2006 Jul 18, Vice Chair - Membership
http://msnbc.msn.com/id/ Alston & Bird LLP
13916867/from/ET/ (last visited Oct 1201 W Peachtree Street
20, 2006).] None of those cases, Atlanta, GA 30309
however, are based upon traditional
(404) 881-7594 • mawilliams@alston.com
medical malpractice theories.
7 See Virginia Code § 8.01-581.20.
healthlawyers.org 13
