CREDENTIALING, PERSONNEL AND EMTALA

ISSUES

ABBIE P. MALINIAK, ESQ.Senior Counsel

Fulbright & Jaworski, L.L.P.Phone : (213) 892-9337

E-Mail : amaliniak@fulbright.com

Patient Safety and Liability Issues

Credentialing and Privileging Need for temporary credentialing and

relaxation of standards during emergency

Need to address in Medical Staff Bylaws NOW

Patient Safety and Liability Issues

Credentialing and Privileging JCAHO requires hospitals to establish

procedure for verifying credentials and granting privileges during and after disaster (HAS Std. MS 4.10)

After Emergency Management Plan has been activated (HAS Std. EC 4.10)

Patient Safety and Liability Issues

Licensing, Credentialing/Privileging Issues JCAHO – If hospital’s disaster plan is

activated, may implement modified process for determining qualifications and competence of volunteer practitioners (Std HR 1.25 and MS 4.110)

Still limited to activities under license Must verify identity and licensure similar to

verification process for granting temporary privileges to meet important patient care needs (Std. MS 4.100)

Need to address emergency licensing in Medical Staff Bylaws NOW

Patient Safety and Liability Issues

Licensing Issues Out-of-State Professionals – National

Emergency Management Assistance Compact (EMAC) 2006, which California ratified, allows for reciprocity among member states and licensed professionals.

Medicare requirements also waived for Katrina providers

Patient Safety and Liability Issues

Telemedicine Consider telemedicine capability and

privileges so physicians not required to attend hospital

Hospital Admissions May need to cancel elective

admissions during triage phase Use non-acute beds for acute patients

Patient Safety and Liability Issues

Standard of Care Legal concept – Action a reasonably

prudent practitioner would take under same or similar circumstances

Would adapt to emergency situations Informed consent

Patient Safety and Liability Issues

Good Samaritan Statute – B&P §2395 Liability of licensee for care rendered at

scene of emergency In California, person not liable where render

care at scene of emergency in good faith and not for compensation

Not including Emergency Departments or medical care site if part of normal course of practice

Patient Safety and Liability Issues

Good Samaritan Statute – B&P §2395

“Scene of emergency” includes Emergency Departments of hospitals in the event of a medical disaster

“Medical disaster” means a duly proclaimed state of emergency or local emergency declared pursuant to the California Emergency Services Act

Patient Safety and Liability Issues

Good Samaritan Statute – B&P §2396

Liability for emergency care for complications after prior care by another

Key inquiry – whether duty of care pre-existed the emergency

Patient Safety and Liability Issues

Good Samaritan Statute – B&P §2727.5

Protects registered nurses only if care rendered outside the place and scope of employment

Patient Safety and Liability Issues

Good Samaritan Statute – B&P §2861.5

Protects licensed vocational nurses only if care rendered outside the place and scope of employment

Patient Safety and Liability Issues

Patient Abandonment

Potential problem: Reluctance of physician to continue to care for patient once diagnosis of pandemic flu is confirmed.

Legal issue: When does that physician face liability for patient abandonment?

Patient Safety and Liability Issues

Patient Abandonment

Scenario: Physician accepts patient for treatment

Legal Standard: Cannot withdraw treatment without due

notice to patient AND ample opportunity to afford another medical attendant

In absence of patient’s consent must not only give due notice BUT must also secure presence of another physician

Patient Safety and Liability Issues

Patient Abandonment

If shortage of physicians in hospitals due to pandemic, may not have a choice but to continue providing medical care even if have initial contact with patient in the Emergency Department.

Hongsathavij v. Queen of Angels/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123

Patient Safety and Liability Issues

Government Code §8659:Physicians, hospitals, pharmacists, nurses and dentists who render services during a state of emergency or local emergency at the request of a health officer have no liability for injuries sustained by any person from those services, regardless of the circumstances or cause, except for willful acts or omissions

Patient Safety and Liability Issues

Prescription Medications and Treatment Only authorized individuals to have

access to drugs Only licensed individuals to prescribe

and administer drugs

Patient Safety and Liability Issues

Prescription Medications and Treatment Maintain drug integrity Relaxation of standards for

emergencies? Volunteer physicians and pharmacists

to act Acceptance of donated drugs

Employment and Staffing Issues

Disaster Policy for Staff Must have in place NOW. Do not wait

for emergency Accessible via hardcopy or intranet Telecommuting policy for emergency Voluntary National Standards for

Disaster Preparedness (National Fire Protection Association 1600) www.nfpa.org

Employment and Staffing Issues

Things to do in advance of pandemic: Identify critical staff and personnel Medical staff Nurses and allied health

professionals Patient support Plant operations Vendors Draft policies

Employment and Staffing Issues

Communicating with Staff (before, during, and after) Call-in line or website for further info Public announcement postings Chain of command/Telephone chain Security of communications

(passwords) Public Health Education for Staff

Employment and Staffing Issues

Attendance Issues Consider flex time alternatives for jobs

that don’t require presence at hospital Sick workers may be problem for

spreading disease Family and Medical Leave Act issues

for prolonged absences

Employment and Staffing Issues

Attendance Issues Health Officer can order staff to be

tested and cleared before returning to work

Have contingency plan for high absenteeism

Alternative workplaces

Employment and Staffing Issues

Payment and Benefits Issues Policy for payment of wages during

emergency if absent due to emergency Policy on granting (paid) time off Providing support services (i.e.,

counseling, financial assistance, etc.) Temporary housing

Employment and Staffing Issues

Other Legal Issues Mandated attendance Mandated vaccinations Overtime wage and hour

Employment and Staffing Issues

Other Legal Issues Maximum hours or ratios under

applicable contracts or regulations OSHA standards and compliance during

bioevent Workers’ Compensation (i.e., illness

contracted on the job; quarantine/isolation; harmed by mandated vaccination)

EMTALA Issues

Hospital must provide screening and stabilization for person presenting at ED

Waiver of sanctions during Katrina emergency HHS Secretary has authority to temporarily

waive EMTALA requirements in declared emergencies

HHS waived sanctions for EMTALA violations for hospitals with ERs located in “emergency areas” if have to transfer prior to stabilization if due to Katrina

Hospital still obliged to conduct screening