WhiteCoat

Where Are Force Fields When You Need Them?

When I first heard about the lawsuit in which Louisiana attorneys sued a hospital system because it didn’t prepare well enough for Hurricane Katrina, I thought they were kidding. Really? Hospitals have to be built to withstand hurricanes and flooding from one of the deadliest and costliest storms in American history?

Now I see the absolute futility in trying to use logic to defend against lawsuits.

Tenet Healthcare has decided to settle the class action lawsuit against it for $25 million.

When the nation’s resources couldn’t even rescue many hurricane survivors, the hospital corporation was sued because of “insufficiencies in [its] backup electrical system” and because it did not have sufficient “plans for patient care and evacuation” during one of the worst hurricanes in the country’s history. The failed levees and the government’s lackluster response are not at issue, though. Plaintiff attorneys called those factors “irrelevant” to the responsibility that the hospital had in the face of the hurricane.

That leaves me wondering. What is a hospital’s duty to patients in the face of a disaster?

I’d ask the lawyers, but I’m sure that no one would answer. And the legal community apparently didn’t set the bar very high for itself during the same disaster. After all, courthouses and law offices in New Orleans were closed after Hurricane Katrina. For heck’s sake, the MAIL wasn’t even being delivered.

The problem is that the civil legal system works retrospectively, saying that “if only you took these measures, the injury would not have occurred” or “if only you hadn’t done this, the injury wouldn’t have occurred.” Of course, it is easy to determine what should or should not be done after the fact. Law is the ultimate Monday Morning Quarterback. I have never seen an attorney issue a press release stating that liability should never ensue if a person or corporation takes or avoids certain measures.

So what can we do prospectively to prevent similar lawsuits against hospitals in the future?

Not defensive medicine … defensive corporate action plans, of course.

I’ve come to the conclusion that everyone really needs to pay hospitals a lot more for providing health care.

After all, in the event of an invasion from outer space, it’s going to cost a heck of a lot of money to have laser canons mounted on top of every hospital in the United States to defend patients from aliens who are hell bent on sucking out the brains of infirm humans with extra-terrestrial soda straws.

21 Responses to “Where Are Force Fields When You Need Them?”

  1. They could build all hospitals on stilts just in case of a flood? They’d also have to be sheathed in steel to shield again tornadoes too of course.

  2. Andrew says:

    Hospital corporation needs to move generator. Move costs $250,000. Hospital decides its not economically feasible. Hospital gets sued $25M for not moving generator. Insurance premiums go through the roof, hospital now has even less funds for infrastructure.

    I realize this feeds into the plaintiff attorney’s argument that corporations (and doctors) need monetary consequences in order to truly reform. But when reforms and punishment are doled out retrospectively, the only ones who truly profit are lawyers and insurance companies.

  3. Meghan says:

    I actually snorted when I read the “invasion from outer space” bit. It’s unfortunately, true.

  4. The hospital merely has a labeling problem. It needs a warning/disclaimer, like those found on home hair dryers, for example “don’t use outdoors in the rain or while bathing”.

    In the hospital’s case, it can plainly state that it is a dangerous place where the death rate is much higher than in other buildings. It “offers effective treatment only in sunny weather”. It can refuse admissions during hurricanes, and it can offer to transport any patient to the curb if the patient believes that they may be better off.

    It can state if it has emergency generators, of what capicity and testing schedule. Then, patient beware.

  5. A hospital’s duty isn’t to have force fields; nor do they have a duty to be built to withstand hurricanes and flooding.

    It’s a lot less dramatic than that; don’t have crappy evacuation plans. Don’t forget to have evacuation plans. If you don’t have an evacuation plan, don’t let your doctors ad-lib a plan containing “euthanize patients” when it becomes clear they can’t evacuate everyone.

    As far as failed generators and the structure, yeah, those claims never would have survived at trial. Those were probably more or less irrelevant to the settlement.

    • WhiteCoat says:

      “Don’t have crappy evacuation plans”
      Perfect example of Monday Morning Quarterbacking. Please post what you consider to be a “non crappy” evacuation plan to be used in the future.
      Then tell me how your plan would have saved lives during one of the worst natural disasters in this country’s history.

      Don’t let your doctors “euthanize patients.”
      So it’s your contention that the hospital was aware of what the doctors were doing or ratified the doctors’ actions after they occurred?
      Note that the doctors were not charged with murder for the “euthanizations.”

      Please tell us all what should be done with a hospital full of patients, pinned in by a hurricane, with no electricity, the heat is 100+ degrees inside the hospital, and there are limited contacts with the rest of society.

      • First, regarding the ratification of the doctors’ actions; no, I don’t think that’s a ratification. I was using that example to point out how bad things got in the hospital. Second, I was unclear and overly glib about the evacuation plan. I was pointing out what would be negligence, not criticizing Tenet’s evacuation plan.

        I’m not Monday Morning Quarterbacking. The law rarely requires perfect results. One of the worst natural disasters in the country’s history certainly doesn’t call for perfect results. The legal standards in this case are a lot more reasonable than that.

        It’s not Monday Morning Quarterbacking to say that things went really wrong. Whether that’s 1) from the hurricane alone, and no plan ever could have prevented anyone from dying, or 2) the hospital’s negligence in combination with the hurricane is hard to say; but that’s why we have a legal system.

        It’s not a black and white case. Negligence isn’t a failure to keep everything perfect – no one was sued for not keeping things perfect. Negligence is the failure to do a reasonably good job given the circumstances. Your argument is essentially “these were really bad circumstances, so there could be no responsibility to do anything better.” I agree that these were really bad circumstances, but that doesn’t mean that Tenet couldn’t possibly have done anything better.

        Look, we can probably agree that the hospital didn’t do a great job on some of the things, and they are more or less blameless on a lot of other things. Like I said, that claim about the structure of the hospital not being sound enough is silly. Barring some miraculous evidence of the Board specifically asking for substandard construction, that one would get laughed out of court.

      • WhiteCoat says:

        Again, your aspersions of “negligence” are being made with a retrospectoscope. It absolutely IS Monday Morning Quarterbacking. You’re casting blame by stating what the hospital did something wrong after the fact.

        Imagine that you are running a hospital. What should you PROspectively do in order to make sure that you won’t be sued again when Hurricane Doroshow hits shore? Better yet, imagine that a hospital CEO came to you and asked your legal opinion about what evacuation policy and safety steps should be put in place during any catastrophic natural disaster [not just a hurricane]. What PROspective advice would you give your client?

        You’re tapdancing around an answer to these questions because you can’t give a prospective response. All lawyers can do is look back retrospectively, shake their collective heads, make a few “tsk tsk tsk” sounds and say that “If only you had only done this differently, people wouldn’t have been injured.”

        Attorneys may allege that negligence “isn’t about perfection,” but the more I read about some of the lawsuits that survive in court, the more I doubt that allegation. If negligence lawsuits aren’t about perfection, then give me an example of some mistakes that people should suffer no liability for making in a natural disaster when those mistakes result in a patient’s death.
        Unless you can do that, then you acknowledge that no one can make mistakes which result in a patient death. That then makes it very easy to work backwards and allege liability. Find a patient death, look “something that could have been done better,” call it a “mistake,” and file a lawsuit. The whole process results in holding providers to the very “perfection” that lawsuits are “not supposed to be about.”

        “[T]hat doesn’t mean that Tenet couldn’t possibly have done anything better.”?
        The hospital could possibly have installed a $17 billion giant inflatable life raft, complete with its own nuclear energy system to power ventilators and air conditioning, that would have lifted the whole hospital above the flood waters and floated them to Kansas. You’re right, it could have done something better.

        But, counselor, are we talking “reasonable” standard or “perfection” standard when we state that there is some possible action in the universe that could have saved more lives?

  6. I get the feeling that I’m not explaining myself clearly. Also, I’m not a disaster preparation expert. I’m not interested in researching disaster preparation to give you a really solid answer with prospective advice. I can’t do better off the top of my head, but that does not prove that no person could ever have done better. (Heck, that’s a mighty low bar, if I’m honest. You’re not exactly dealing with a leading figure on disaster preparedness here.)

    I was trying to point out that your blog post is unfairly assuming that the hospital did everything reasonably well and was still on the hook because they didn’t install force fields. There’s a wide gulf between perfection and what the law asks.

    Look, I agree with your central premise: Katrina was insanely terrible, and even doing everything right probably wouldn’t have been enough to keep everyone alive. But if Tenet was negligent before the storm in some fashion, why should they get off the hook because the disaster was bigger then the one they may have planned poorly for?

    “If negligence lawsuits aren’t about perfection, then give me an example of some mistakes that people should suffer no liability for making in a natural disaster when those mistakes result in a patient’s death.”

    Reasonable mistakes. Mistakenly assuming FEMA wouldn’t drop the ball and nearly leave the city to fend for itself. Mistakenly assuming that New Orleans wouldn’t turn into a war zone. More hypothetically, mistakenly deciding one patient is stable enough to wait while you deal with another. Also, mistaken diagnoses are reasonable mistakes plenty of times, believe it or not.

    As for the raft, I’m not really sure how to respond to that. There exist shades of grey between “what Tenet did” and “$17 billion nuclear raft” or force fields or hospitals with stilts or whatever. We can disagree on the propriety of questioning where in that spectrum Tenet was, where they should have been, and so on. But let’s at least agree that there is a spectrum. This isn’t a binary situation.

    • WhiteCoat says:

      The linked article stated that the issues at the center of the lawsuit were “failed backup electrical systems” and “failed plans for patient care and evacuation”.

      I’m not a disaster preparedness expert, either, but give me an example of how far hospitals have to go to provide electricity when they are partially submerged and how much a hospital has to do in order to evacuate patients during one of the worst natural disasters in the state’s history.

      “that does not prove that no person could ever have done better”
      Your argument in making this statement is strict liability, not a reasonableness standard.

      “Why should they get off the hook because the disaster was bigger then the one they may have planned poorly for?”
      In a way, you’re making my point for me. The theme of the argument is “Exactly how big of a disaster should one be legally required to plan for?”
      If you make the hospital responsible for that planning, shouldn’t police stations, fire stations, courthouses, grocery stores, gas stations, and other essential businesses be responsible for them, too?

      If it is a mistake to assume that FEMA would help or that New Orleans would turn into a war zone, then explain how to avoid those mistakes.
      The only way those “mistakes” can be avoided is to require that every hospital establish their own FEMA-like committee, purchase equipment and hire personnel to help hospitals manage every conceivable disaster — at a cost that could never be borne by any hospital system since the federal government couldn’t even do it.

      “But let’s at least agree that there is a spectrum.”
      Of course there is a spectrum of responses to any event. Similarly, acting “reasonably” while sitting behind a desk in a law office is quite different than acting “reasonably” when in the eye of a Cat 5 hurricane with little or no supplies or support.

  7. Anonymous says:

    “The bodies of 45 patients were discovered at Memorial Medical Center after the August 2005 storm, far more than at any other hospital”

    That sort of shouts that not everything was up to par. Par being defined as what the average was among all the hospitals in a similar situation (middle of a hurricane).

  8. Nick says:

    The hospitals in New Orleans and in LA did remarkably well in handling the disaster. If you care about the take of bloggers: http://www.planetizen.com/node/17740. But here’s the big-picture deal: get resources to handle the worst, hope that cops are on hand the handle the nastiest (like my brother who handles cr** all day) and be at rest that firefighters and cops will be available…unless you voted Republican. Then you’re fu**ed. Otherwise, no worries…oh wait, no, you’re fu**ed regardless of how you voted, because everyone suffers from majority rule…

    • JustADoc says:

      Senate-Democrat majority
      President-Democrat
      house-Republican majority

      Until 8 months ago all 3 were controlled by Dems.

      And of course Lousiana’s governor(and New Orlean’s mayor) at the time was a Democrat and she was the one that did not allow FEMA to come into the state until 2 days after Katrina hit.

  9. midwest woman says:

    I used to work at a Tenet facility. It doesn’t surprise me their back ups generators failed and they were advised of their shortcomings prior to the disaster.
    Many things cannot be prevented during a disaster but allowing bad back-up generators to go unrepaired is not one of them.
    They’re cheap bastards that will compromise patients’, families’ and staff safety for a buck. I live in St, louis, worked at my hospital for 9 years and NEVER once saw them run through even a basic tornado drill. Most of the nurses I work with don’t know the basics to this.
    Sorry, WC, they’re a shoddy company.

    • WhiteCoat says:

      I don’t know a thing about Tenet itself. It may very well be a shoddy company.

      My issue is that this settlement sets a bad precedent.

      If Tenet fixed the backup generators and had exemplary evacuation plans, would the patients all have survived? I doubt it.

      Had Tenet fixed the generators and made the plans, then the families of those that died would retrospectively have picked out another “negligent” act or failure to act that would have saved their loved one.

      Starting out with a patient death, working backward to see what was done “wrong” and then holding someone liable for millions of dollars because of a failure to prevent death is a lot different than looking forward and trying to predict what should be done to prevent patient deaths.

      • midwest woman says:

        I’m not suggesting a positive outcome if all the ducks were in a row. But if you know of failing generators when your hospital is in a disaster prone area, your priority would have been to fix them. Didn’t happen.
        Lawsuits? probably. But the plaintiffs would have had one less leg to stand on.
        It’s a no brainer you keep generators in tip top shape. That is not monday morning quarterbacking just common sense.
        As for the rest of it, it’s all very sad.

      • Hueydoc says:

        It’s an extremely shoddy company. I worked at one thru a hurricane once- their disaster plan was “The ER doctor and the hospitalist will handle all patients”.When I called the hospitalist to ask for help in the ER, he knew nothing about it and told me he “didn’t do ER” !
        One of the worst shifts in my life. Of course, all administrators were unavailable…….

      • Bumper says:

        Lost in all of this is the fact that Tenet was not the only hospital to lose power, Tulane had moved their generator to the second floor of their parking garage and still lost it to the flood waters, Baptist lost power. The Orleans Parish sheriff’s generator was flooded. Tenet is located the closest to the Lake and the Gulf, they didn’t stand a chance no mater what. WhiteCoat is correct, this sets a bad precedent. From a strict actuarial standpoint all the people combined who passed away at Tennet were not worth 25 million and even with punitive damages it wouldn’t have come close to that amount. Tenet blinked. Now everyone loses.

  10. [...] posted a rather narrow-minded critique of a legal system that allows for this sort of result, titled “Where Are Force Fields When [...]

  11. jimc5499 says:

    It doesn’t matter what the hospital does, they can never do enough. What I’m curious about is why did they settle? Unless they felt that they didn’t do enough and feared a Jury, why setle?

  12. [...] Hospital pays $25M to settle lawsuit charging lack of Katrina preparedness [White Coat] [...]

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