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CREDENTIALING, PERSONNEL AND EMTALA
ISSUES
ABBIE P. MALINIAK, ESQ.Senior Counsel
Fulbright & Jaworski, L.L.P.Phone : (213) 892-9337
E-Mail : [email protected]
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