Category — Guest post

On July 20^th, a  Louisiana judge gave preliminary approval on a 25 million dollar class-action lawsuit settlement agreed to by Tenet Healthcare Corporation and associated plaintiffs.  What were the allegations of this lawsuit?  Basically it boiled down to the failure of a corporation to provide adequate emergency preparedness for those for whom it was responsible.

During Hurricane Katrina, some 1000 individuals were trapped in Memorial Medical Center, owned by Tenet, in uptown New Orleans.  Power failed.  Backup power failed. Utilities failed. Temperatures inside the hospital reached 100 degrees.  Rescue eventually came and many survived.  Unfortunately 45 patients did not.

It seems to us that this court action is a resonating wake up call for all corporations, GO’s, NGO’s, and OGA’s around the country.  The Journal of American Medical Association seems to agree.  In an article published on July 20^th, two law professors state that the Tenet settlement “raises the stakes” for other healthcare organizations which run the risk of similar litigation over lack of, or insufficient, emergency preparation.  To extend this statement to all organizations which have a responsibility to employees, visitors, or customers residing in a fixed location is certainly by no means a stretch.

“Tagging hospitals with liability for all patient harms that, in hindsight, could have been prevented by better preparedness creates a nearly impossible legal standard for entities to meet — principally that they be prepared for nearly every contingency in an emergency,” write James Hodge Jr., JD, and Erin Brown, JD, MPH, professors at Arizona State University (italics added).  We would counter, however, that creating a “nearly impossible legal standard” certainly does not mitigate the need for corporations and other organizations to seek a level of sufficient emergency preparedness to be considered prudent and reasonable.  Failure to do so may in fact guarantee a negative outcome to any potential litigation on the matter.

With new light shining on this important topic, we feel promoted to re-post the following blog written by our legal partners, Troutman Sanders.

The Legal Side of Disaster Preparedness for Businesses and Corporations

You have gotten a liability policy of insurance for your company. But, have you considered whether it covers a failure of your company to plan for natural disasters or other critical events? What sort of liability might your company face if it fails to properly plan for such situations? Your company could conceivably be faced with any number of critical events, including a pandemic, a major weather event or natural disaster, a chemical spill or a terrorist attack.

Negligent failure to plan is an emerging area in the liability context. In this regard, the primary questions a company must ask itself in order to properly confront its risks are:

• Has our company taken reasonable precautions to prevent a reasonably foreseeable critical event, which could take a significant toll on our work force or our customers?
• Are we prepared in such an event to respond with proper protective and palliative actions for individuals following a reasonably foreseeable critical event?

An employer might be considered negligent if it does not take reasonable steps to eliminate or diminish known or reasonably foreseeable risks that could cause harm. Repeated acts of terrorism on American soil are almost certain to occur in the future; this is no longer an unthinkable event. Reports of natural disasters seem to appear with increasing regularity. Corporations and governmental entities are reasonably expected to prepare for such foreseeable risks.

Consider the massive class action filed against the United States government which grew out of the Hurricane Katrina disaster. The lawsuits are based, in part, upon the alleged failure to plan by the Army Corp of Engineers. As of May 2007, approximately 250,000 people seeking over $278 billion in Katrina-related damages have had lawsuits filed on their behalf against the U.S. government alone. On top of that, numerous other organizations, corporations, public officials, levee boards, insurance companies, and others are being sued for additional billions of dollars in damages.

Katrina Canal Breaches - Photo credit Wikipedia

The residents involved in the Katrina Canal Beaches Consolidated Litigation asserted that the operation and maintenance of the Mississippi River Gulf Outlet (MRGO) caused a levee to be breached catastrophically. The Court found that the Corps’ negligent failure to properly plan the maintenance and operational capacities of the MRGO, in light of the possibility of a natural disaster such as Hurricane Katrina, was a substantial cause for the fatal breaching of the levee and the subsequent catastrophic flooding. While the Court considered several of the government’s defenses to the action, it ultimately concluded that none of these were available to the Corps. Damages were awarded to most of the residents involved in the litigation, based on the fact that they demonstrated that their claims properly arose under the law of negligence as set forth under the Louisiana Civil Code and the Federal Tort Claims Act.

One particularly interesting portion of the decision involves the Court’s analysis explaining that, while planning had been made based upon previous data, no updated plans had been made based upon new data that had come to light:

[A]n agency that has prepared an Environmental Impact Statement (EIS) cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a “hard look at the environmental effects of [its] planned action, even after a proposal has received initial approval.” If there remains major Federal action to occur, and the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.

The teaching of this decision is clear: companies must have critical event contingency plans in place, and these plans must be continuously updated and revised based upon any new data that may become available. If a company fails to do so, it risks substantial liability based upon such negligence. Because we live in an increasingly litigious society, companies must plan for possible legal attacks from individuals, including employees, customers, and vendors, who have been injured as a result of a company’s lack of planning for a foreseeable critical event.

Guest post by Paige Fitzgerald of Troutman Sanders LLP.

Facta Non Verba

Independence did not come easy to America, and it has not been easy to keep.

By the time colonists declared themselves free of British rule on July 4, 1776, they had the highest standard of living in the world, higher than that of England itself.

In the 167 years since the first 500 settlers landed in Virginia to carve a society out of the wilderness, their number had grown to more than two million. A majority could read and write.

They had established colleges – including Harvard, Yale, Princeton and Columbia universities and the University of Pennsylvania – in five of their thirteen colonies.

They had developed a postal system that from Maine to Florida and from New York to Canada. A public hospital had been established in Pennsylvania and one was evolving in New York.

And, having largely governed their colonies to their liking for more than 100 years, they had come to think of themselves as Americans – though they paid taxes, as well as penalties, to the motherland.

First it was one thing, then another: The Iron Act limited the growth of the American iron industry. The Currency Act banned the issuance of paper money. The Sugar Act applied duties to imported sugar and other items such as textiles, coffee, wines and indigo, doubled the duties on foreign goods reshipped from England to the colonies and forbade the import of foreign rum and French wines.

The Stamp Act imposed taxes on all printed materials, including newspapers, pamphlets, bills, legal documents, licenses, almanacs, dice and playing cards. The Quartering Act required colonists to house British troops and supply them with food. The Townshend Revenue Acts imposed taxes on paper, tea, glass, lead and paints. Fishing had been banned in the North Atlantic, the colonial government in Massachusetts had been suspended, and the English infantry had come ashore at Boston Harbor, firing pointblank into a crowd.

The First Continental Congress formed the Continental Army under the leadership of George Washington, and appointed a committee to draft a declaration of independence.

Called upon to write the draft, Thomas Jefferson expressed the convictions in the minds and hearts of the American people at that time. The political philosophy expressed in the document was not new; its ideals of individual liberty had already been expressed by Continental philosophers.

Jefferson summarized this philosophy in “self-evident truths” and set forth a list of grievances against the King of England in order to justify before the world the breaking of ties between the colonies and the mother country. That summary would become this country’s most enduring document.

It reads, in part: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights … that among these are Life, Liberty and the pursuit of Happiness.

“Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government … when a long train of abuses and usurpations … evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Two hundred seventeen thousand died for that conviction between the time the “shot heard ‘round the world” was fired across Old North Bridge in Concord, Massachusetts on April 19, 1775 and British General Charles Cornwallis surrendered to Washington at Yorktown, Virginia on October 17, 1781. More than 6,000 suffered non-mortal wounds.

The fight for those convictions has been ongoing.

Statistics show that all told, as of March 2010 more than 42 million Americans have served in the nation’s military during times of war. More than 650,000 have died on battlefields, another 540,000 have died in service, and nearly a million and a half have suffered non-mortal wounds.

And, there are more than 17 million American military veterans still living.

ICE PACK Emergency Preparedness Systems and Ashbury International Group salutes them all and God bless the United States of America!

Resolving to be Ready in 2011 – Important Gifts for Important People

From winter storms, floods and even pandemic contagion— all disasters have one thing in common: they remind us of the importance of pre-disaster preparedness. But good intentions need to turn into tangible deeds, and according to FEMA Regional Administrator Ken Murphy, there’s no time like the holidays to start, by resolving to be ready before disaster strikes.

“The holiday season is a great time to give important, inexpensive gifts that say: ‘I want you to be safe!’ and reduce risk exposure for friends and loved ones,” said Murphy. “Gifts that can save lives are a wonderful way of welcoming in 2011. The dialogue and the mindset that goes along with it may mean even more than the gift itself.”

The Resolve to be Ready in 2011 initiative is led by FEMA’s Ready Campaign in partnership with Citizen Corps and The Advertising Council. For more information on the Ready Campaign and Citizen Corps, visit Ready.gov and CitizenCorps.gov.

Emergency and preparedness items that might make great gifts this Holiday Season include:

• Portable, battery powered radio with NOAA Weather Radio channels, and extra batteries.
• Enrollment in a CPR or first-aid class.
• GPS units for vehicles.
• Emergency generators.
• Emergency cell phones.
• Carbon Monoxide and Smoke detectors.
• Appropriate fire extinguishers (kitchen, garage, car).
• Disaster kits for homes, offices and autos (first aid kits, food, water and prescription medications for 72 hours, eyeglasses, extra clothing, blankets, flashlights, spare batteries, heavy-duty work gloves, and sturdy pair of shoes).
• Emergency escape ladders for second-story exit in a fire.
• Car kits (emergency flares, shovels, ice scrapers, flashlights and fluorescent distress flags).
• Pet Disaster kits (food, water, leashes, dishes and carrying case or crate).
• A camp stove with extra fuel.
• The gift of a gardener to cut back combustible vegetation from wildfire-vulnerable homes.
• National Flood Insurance.

Follow FEMA online at www.twitter.com/fema, www.facebook.com/fema, and www.youtube.com/fema. Also, follow Administrator Craig Fugate’s activities at www.twitter.com/craigatfema. The social media links provided are for reference only. FEMA does not endorse any non-government websites, companies or applications.

FEMA’s mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.

[ FEMA ]