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Delivering Medical Care in a Catastrophe: Time for Crisis Standards

Dan Hanfling

This article is part of Crossroads in Biosecurity: Steps to Strengthen U.S. Preparedness, published by the Center for Biosecurity September 8, 2011 to mark the 10th anniversery of the 2001 anthrax attacks. Full document | Printable PDF

            

New Orleans after Hurricane Katrina was a city underwater. Tulane Medical Center, Charity Hospital, and Memorial Medical Center were flooded. Power and water supplies were quickly exhausted, sewage backed up, a sickening stench filled the air, and there was no food. Medical resources and staff were in short supply. There were a lot of very sick patients. At greatest peril were those maintained on mechanical ventilators to breathe. Without electrical power, they were ventilated by hand with a bag that pushed air into their lungs for hours, even days at a time.

In the immediate aftermath of the storm, when it became evident that the entire city had to be evacuated, doctors and nurses worked in the dark, in extreme heat and humidity, to do what they thought best for their patients. But there was no coordinated, overarching plan, so hospital patients were prioritized for evacuation in an ad hoc manner. This meant, for instance, that at Memorial hospital, it was not necessarily the sickest patients who were prioritized last for evacuation; it was those patients who had “do not resuscitate” orders on their medical charts. Many were given anti-anxiety and pain medications to ease their suffering—desperate actions taken in a desperate situation. Despite all best efforts, a horrifying outcome ensued. Dozens died, their bodies left behind when the last doctors and nurses were rescued from the flooded Memorial hospital.

New Orleans after Hurricane Katrina was a city underwater. Tulane Medical Center, Charity Hospital, and Memorial Medical Center were flooded. Power and water supplies were quickly exhausted, sewage backed up, a sickening stench filled the air, and there was no food. Medical resources and staff were in short supply. There were a lot of very sick patients. At greatest peril were those maintained on mechanical ventilators to breathe. Without electrical power, they were ventilated by hand with a bag that pushed air into their lungs for hours, even days at a time.

In the immediate aftermath of the storm, when it became evident that the entire city had to be evacuated, doctors and nurses worked in the dark, in extreme heat and humidity, to do what they thought best for their patients. But there was no coordinated, overarching plan, so hospital patients were prioritized for evacuation in an ad hoc manner. This meant, for instance, that at Memorial hospital, it was not necessarily the sickest patients who were prioritized last for evacuation; it was those patients who had “do not resuscitate” orders on their medical charts. Many were given anti-anxiety and pain medications to ease their suffering—desperate actions taken in a desperate situation. Despite all best efforts, a horrifying outcome ensued. Dozens died, their bodies left behind when the last doctors and nurses were rescued from the flooded Memorial hospital.

Establishing Standards of Care

Whether it follows a catastrophic earthquake, another massive hurricane, a large-scale attack with anthrax, or the detonation of an improvised nuclear device, a time may come in the United States when our healthcare system will be forced to adjust the ways in which medical care is delivered to victims and survivors. This will be a profoundly difficult adjustment, because in the U.S., care delivery tends to focus on trying to achieve the best outcomes for every individual, regardless of resources, age, diagnosis, or prognosis. It is highly likely that our normal standards will be impossible to maintain during a catastrophic event when, predictably, resources will be scarce.

“Standard of care” is both a medical and a legal concept. In medicine, a standard of care is a diagnostic and treatment process that all clinicians should follow in a specific clinical circumstance or when treating a specific type of illness or patient.[1] Medical standards are reached through evidence-based professional consensus, with the understanding that the ability to meet those standards is predicated on the availability of necessary equipment, supplies, therapeutics, and staff who are trained and licensed to deliver that care. From a legal perspective, standard of care refers to the level at which the average, prudent provider in a given community would practice. It describes how similarly qualified practitioners would manage a patient’s care under the same or similar circumstances.[1]

Any attempt to define crisis standards of care (CSC) must take into account the interests of individual patients, healthcare providers, care delivery settings, the needs of the community, and the demands of both medicine and the law. Consequently, the questions and issues that attend any discussion of establishing standards of care for use in disaster situations are numerous and complex. For instance, the 2003 SARS epidemic (followed by the efforts to plan for pandemic  influenza) made clear that most, if not all, hospitals, cities, and regions in the U.S. did not have available the number of mechanical ventilators and other critical care resources that would likely be needed in a worst-case respiratory illness scenario. If mechanical ventilators and IV pumps, along with commonly used antibiotics and other key medications, and trained professionals are in short supply, then who will be prioritized to receive critical care? Will it be those most likely to survive or those who are already receiving inpatient care when crisis strikes? When care cannot be provided to all, will it be clear who should and should not get care? Who will make those decisions, and what criteria will they apply? When the delivery of medical care as we know it is not possible, the healthcare system as a whole or in affected parts will have to shift to crisis standards of care.

In health care, the concept has come to describe a framework for medical care delivery in a catastrophic situation. It suggests a neat and tidy transition, with clear indicators for when it will be time to make that transition, who should make the call, and what it will look like. In reality, there is not much clarity around this issue, at least not now. There are, however, important steps that can be taken to begin to impose some order on this complicated area of medical and legal practice.

A Framework for Medical Care in a Catastrophe

To forge a path toward establishing crisis standards of care, it is necessary to understand the evolution of this policy issue. In medicine, the focus in this area was initially on developing altered standards of care, discussions of which centered on the potential rationing choices that would have to be made when it could be predicted that the need for resources would outstrip supply.[2-4] With the emergence of the 2009 H1N1 influenza pandemic, the issue gained an immediacy that shifted the perspective and emphasis from the probable to the practical in catastrophic response planning and formulation of guidance. Toward that end, in 2009, the IOM issued a letter report[5] delineating a medical surge response framework in which care and services may be delivered along a spectrum, with conventional response at one end and contingency and crisis response at the other. It also highlighted the importance of ethical transparency in decision making under such dire circumstances and proposed a number of recommendations that would further engage local and state partners in planning for such a dreaded, but possible, response scenario.

In simplest terms, conventional response is the same as usual care, or standard of care, whereas contingency and crisis response refer to a shift in focus from what is best for individuals to what is best for the greatest number of people. In a contingency response, maximal efforts are made to conserve, adapt, and substitute resources whenever possible. In a worst-case crisis response, selected patients may receive limited care, staff may have to practice outside of their usual professional boundaries, and medical supplies and equipment may have to be reused, or in a worst-case scenario, reallocated to those who may have a better chance of survival. This IOM framework emphasizes making decisions based on sound ethical principles that dictate allocating resources to save the greatest number of lives, accounting for the needs of at-risk populations, and maintaining the public’s trust.

Planning Across All Health Response Entities

More recently, this issue gained some traction with the 2011 release of the CDC’s Public Health Emergency Preparedness (PHEP) grant, which includes language that specifically promotes planning for the implementation of crisis standards of care amongst public health departments and their emergency planning partners.[6] CDC prioritizes the development of written plans that “clearly define the processes and indicators as to when the jurisdiction’s healthcare organizations and healthcare coalitions transition into and out of conventional, contingency, and crisis standards of care.” With this grant, state and local health departments will be expected to begin to address these difficult issues. This means that focused effort to plan for crisis response will be given added priority in state and local public health and medical planning for response to catastrophic disaster.

The important next step in health care is for the ASPR Hospital Preparedness Program (HPP) to prioritize development of crisis standards in its next set of guidance for grantees. After all, it will be hospitals, healthcare facilities, and their healthcare providers who will bear the overwhelming burden of delivering care under catastrophic conditions, and they must be compelled and funded to prepare in advance. No one should have to make the types of decisions that will arise in a catastrophe without benefit of advance planning, guidance, and support. With adequate funding and guidance, medical surge response plans should be developed, and they should emphasize a proactive rather than reactive approach to triage, and should promote the stewardship of equipment and supplies over reuse and reallocation whenever possible.

If the HPP emphasizes planning for crisis response efforts and development of crisis standards of care, then healthcare system stakeholders will receive the “green light” they need to tackle these very thorny issues. The requirements of the HPP and PHEP grant programs should be aligned to ensure that planning for a catastrophic healthcare response is occurring across the entire spectrum of health response entities—hospitals, public health agencies, and the medical community.

Clearing Legal Impediments to Response

Without question, there are numerous complex issues related to delivery of medical care during a catastrophic disaster and significant implications for patients. But there are equally important legal concerns for healthcare providers and the component parts of the healthcare system. Therefore, any discussion of crisis standards of care must address liability protections for healthcare providers, hospitals, and other acute care delivery settings within states and across the federalized U.S. system. The aftermath of Hurricane Katrina made clear that legal protections must be in place for medical practitioners who may be forced to make life or death decisions in a disaster. Without such protections, fear of professional and/or financial devastation may inhibit or even prohibit delivery of care when it is needed most.

Progress in this area has been slow and complicated by language and terminology. There has been a slowly evolving discourse from one corner of the academic legal community that counters the need for a distinct standard of care for use in disasters. The argument is that care delivered in a disaster setting will be judged based on the circumstances of the disaster event, including resources available to medical practitioners who choose to respond to the disaster. This line of reasoning discounts the fact that the entire system of healthcare delivery will be fundamentally affected, not just those volunteers who attend to patients in a disaster event. There have even been some attempts to conflate discussion of disaster standards of care with tort reform, which is disingenuous at best and dangerous at worst, because it discourages honest discussion and planning.

It must be made explicitly clear that responding under catastrophic conditions is not something that simply involves “disaster volunteers,” nor does response under catastrophic conditions condone poor medical decision making or delivery of “negligent” care. Conditions such as those created during the aftermath of Hurricane Katrina will necessitate involvement of all available healthcare personnel responsible for doing whatever they can under extraordinarily trying circumstances. They must know that their decisions and the care they delivered will not be subject to legal scrutiny in a retrospective assessment, provided those decisions and actions were taken in the context of a declared disaster and within the accepted framework of local, regional, and state catastrophic disaster response efforts.

All attempts at distortion of the issue aside, though, a handful of states and regions have taken important steps to prepare for such eventualities by establishing legal protections for healthcare providers. Virginia is one of the states at the vanguard. In 2008, its government adopted one of the most comprehensive statewide legal approaches, with legislative language that explicitly offers protection to healthcare providers who respond to disasters:

. . . in the absence of gross negligence or willful misconduct, healthcare providers who respond to a disaster are immune from civil liability . . . if the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the healthcare provider unable to provide the same level or manner of care that would have been required in the absence of the emergency.[7]

Legal protections similar to those approved by the state of Virginia ought to be introduced in and adopted by every state legislature. Local and regional healthcare planners and responders need to know that state authorities are supportive and protective of their efforts to deliver health care during catastrophes. Moreover, as recommended in the 2009 IOM report, achieving state- to-state consistency is of utmost importance. This will not be easy in a federalized system, but it is not impossible, and it is an important goal.

Amending the Stafford Act for Catastrophic Response

When disaster strikes, the statutory authority for federal response to a disaster, including mobilization of resources and funding of the response and recovery efforts, is derived from the Stafford Act. This law is intended to provide federal support to state and local governments in their response to a crisis. There are policy discussions under way regarding the relevance and adequacy of Stafford Act declarations in truly catastrophic situations.[8] Serious consideration should be given to amending the Stafford Act for catastrophic response. However, current discussions are incomplete without the inclusion of language that both specifically recognizes the implementation of crisis standards of care under catastrophic response conditions and clarifies liability protections for healthcare providers and facilities that are compelled to respond under such conditions.

Indeed, the recent settlement out of court by Tenet Healthcare for $25 million as a result of a class action lawsuit brought against it by patients of and visitors to Memorial Medical Center in New Orleans demonstrates that “a nearly impossible legal standard”[9] of preparedness has been established for hospitals and healthcare facilities in their response to catastrophic disaster conditions. Consideration for passage of an amendment to the Stafford Act cannot be based solely on damage estimate costs. It must reflect the reality that in the worst-case scenarios, it will not be possible to deliver medical care as we know it. Healthcare providers will do the very best with what they have available to them, but hard decisions will have to be made regarding who gets care and what kind of care can be delivered. It must be understood that, despite all best efforts and noble intentions, patients may not receive and should not expect to receive the care they get under normal, day-to-day circumstances. And healthcare providers must be supported in their efforts to do the best possible for the most number of patients, given the resources available to them. In short, there will be desperate actions taken in desperate circumstances, and the nation must face that reality now and start addressing the issues at hand.

References

  1. MedicineNet.com website. Definition of standard of care. http://www.medterms.com/script/main/art.asp?articlekey=33263. Accessed August 24, 2011.

  2. Agency for Healthcare Research and Quality. Altered Standards of Care in Mass Casualty Events. AHRQ publication no. 05-0043. Rockville, MD: Agency for Healthcare Research and Quality; April 2005.

  3. Hick JL, O’Laughlin DT. Concept of operations for triage of mechanical ventilation in an epidemic. Acad Emerg Med 2006;13:223-229.

  4. Christian MD, Hawryluck L, Wax RS, et al. Development of a triage protocol for critical care during an influenza pandemic. CMAJ 2006;175(11):1377-1381.

  5. Altevogt BM, Stroud C, Hanson SL, Hanfling D, Gostin LO; Committee on Guidance for Establishing Standards of Care for Use in Disaster Situations; Institute of Medicine. Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations: A Letter Report. Washington, DC: National Academies Press; 2009.

  6. Centers for Disease Control and Prevention. Public Health Preparedness Capabilities: National Standards for State and Local Planning. March 2011. http://www.cdc.gov/phpr/capabilities/Capabilities_March_2011.pdf. Accessed August 24, 2011.

  7. Virginia Acts of Assembly, House Bill 403. Approved March 2, 2008. http://leg1.state.va.us/cgi-bin/legp504.exe?081+sum+HB403. Accessed August 24, 2011.

  8. Lindsay BR, McCarthy FX. Considerations for a Catastrophic Declaration: Issues and Analysis. Washington, DC: Congressional Research Service; July 6, 2011. http://www.fas.org/sgp/crs/homesec/R41884.pdf. Accessed August 24, 2011.

  9. Hodge JG, Brown EF. Assessing liability for health care entities that insufficiently prepare for catastrophic emergencies. JAMA 2011;306(3):308-309.