Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Louisiana’

“Doctor says FEMA ordered him to stop treating hurricane victims”

By reader acclaim:

In the midst of administering chest compressions to a dying woman several days after Hurricane Katrina struck, Dr. Mark N. Perlmutter was ordered to stop by a federal official because he wasn’t registered with the Federal Emergency Management Agency. “I begged him to let me continue,” said Perlmutter, who left his home and practice as an orthopedic surgeon in Pennsylvania to come to Louisiana and volunteer to care for hurricane victims. “People were dying, and I was the only doctor on the tarmac (at the Louis Armstrong New Orleans International Airport) where scores of nonresponsive patients lay on stretchers. Two patients died in front of me.

“I showed him (the U.S. Coast Guard official in charge) my medical credentials. I had tried to get through to FEMA for 12 hours the day before and finally gave up. I asked him to let me stay until I was replaced by another doctor, but he refused. He said he was afraid of being sued. I informed him about the Good Samaritan laws and asked him if he was willing to let people die so the government wouldn’t be sued, but he would not back down. I had to leave.”

In a formal response to Perlmutter’s story, FEMA said it does not accept the services of volunteer physicians:

“We have a cadre of physicians of our own,” FEMA spokesman Kim Pease said Thursday. “They are the National Disaster Medical Team. … The voluntary doctor was not a credentialed FEMA physician and, thus, was subject to law enforcement rules in a disaster area.”

However, Perlmutter says once back in Baton Rouge his group

went to state health officials who finally got them certified — a simple process that took only a few seconds.

“I found numerous other doctors in Baton Rouge waiting to be assigned and others who were sent away, and there was no shortage of need,” he said.

(Laurie Smith Anderson, The Advocate (Baton Rouge), Sept. 16; Toby Harnden, “‘I could have saved her life but was denied permission'”, Daily Telegraph (UK), Sept. 18).

Read On…

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“Lawsuit blames oil companies for hurricane damage”

The AP reports that a “lawsuit seeks what attorneys say could be billions of dollars from a long list of oil companies for damages to wetlands that allegedly would have softened Hurricane Katrina’s blow.” Attorneys from the New Orleans firm of St. Martin & Williams are seeking class-action status on behalf of all persons and entities in Louisiana that suffered injury from Katrina’s wind and storm surge. They’re naming as defendants 11 oil and gas companies including Shell Oil, ExxonMobil, Chevron and BP Corp. whose activities they say depleted marshlands, including by building and neglecting pipeline canals. (AP/Shreveport Times, Sept. 17; “Class-action suit filed against oil companies”, BizNewOrleans.com, Sept. 15).

Meanwhile, environmental litigation over the years aimed at slowing levee and flood-control projects could come under Senate scrutiny, despite peals of protest from the Sierra Club, Sen. Chuck Schumer and others (Dan Eggen, “Senate Panel Investigating Challenges to Levees”, Washington Post, Sept. 17; Jerry Mitchell, “Senate panel investigates levee lawsuits”, Jackson Clarion-Ledger, Sept. 17). See Sept. 9, Sept. 14 (& Baseball Crank).

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Lawsuits on the levee

After reports (see Sept. 9) in National Review Online, the Los Angeles Times and elsewhere that Army Corps of Engineers levees and other flood-control measures in southern Louisiana were derailed by litigation over environmental impact statements, critics of the projects respond that the measures in question were badly planned, ineffective in addressing flood dangers, and were eventually let drop for good reasons. (G. Tracy Mehan III, “Dam It”, National Review Online, Sept. 12; press release by University of Texas lawprof Thomas A. McGarity of the left-wing Center for Progressive Reform, Sept. 9 (PDF)). Jonathan Adler comments on NRO “The Corner” here and here.

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Flood damage excluded? Pay anyway

Standard homeowners’ policies exclude coverage of flood damage unless it is purchased at a substantial additional premium, a fact well known to most property owners in high-risk areas. Mississippi lawyer Dickie Scruggs, a familiar figure to readers of this space, had the foresight to purchase flood insurance for his Pascagoula home, now partly destroyed by Hurricane Katrina. Now he wants the world’s insurers to pay billions for the properties they didn’t collect a premium for insuring, as well — perhaps scores of billions, if the principle is to extend to Louisiana. “Mr. Scruggs said he plans to urge Mississippi Attorney General Jim Hood to try to override flood-exclusion clauses in homeowners’ policies in that state in the interest of public policy, a move that could force insurers to pay many billions more toward rebuilding costs.” (Theo Francis, John D. McKinnon and Peter Sanders, “Paying for Flood Damage Looms as Big Challenge”, WSJ, Sept. 8)(sub). An operative with the Mississippi Trial Lawyers Association says he hopes that “people on the Coast and their friends statewide ratchet up the political pressure” to make the insurers pay. (Anita Lee, “Claims Dispute”, Biloxi Sun-Herald, Sept. 9). Megan McArdle thinks it’s all a brilliant way to scare insurers away from offering even conventional coverage in the future (Sept. 8). See also Point of Law, Sept. 9. More: Martin Grace Sept. 8, Sept. 8 again, Sept. 13.

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Army Corps sued over levee-building

Over the years the U.S. Army Corps of Engineers has proposed numerous levee and other public works projects aimed at reducing hurricane dangers to New Orleans and elsewhere in the Mississippi/Missouri river system. Environmental groups have sued, and sued, and sued, and sued, and their lawsuits have often succeeded in stopping these flood-control measures. (John Berlau, “Greens Vs. Levees”, National Review Online, Sept. 8; Michael Tremoglie, “New Orleans: A Green Genocide”, FrontPage, Sept. 8). Plus: Prof. Bainbridge (Sept. 9) has more details and spots a Los Angeles Times article raising the issue (Ralph Vartabedian and Peter Pae, “A Barrier That Could Have Been”, Sept. 9). The article’s summary line: “Congress OKd a project to protect New Orleans 40 years ago, but an environmentalist suit halted it. Some say it could have worked.” More: Sept. 14 (environmentalists and project critics respond).

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First things first

Not long after some 1,000 firefighters sat down for eight hours of training, the whispering began: “What are we doing here?”

As New Orleans Mayor Ray Nagin pleaded on national television for firefighters – his own are exhausted after working around the clock for a week – a battalion of highly trained men and women sat idle Sunday in a muggy Sheraton Hotel conference room in Atlanta. . . .

The firefighters, several of whom are from Utah, were told to bring backpacks, sleeping bags, first-aid kits and Meals Ready to Eat. They were told to prepare for “austere conditions.” Many of them came with awkward fire gear and expected to wade in floodwaters, sift through rubble and save lives.

“They’ve got people here who are search-and-rescue certified, paramedics, haz-mat certified,” said a Texas firefighter. “We’re sitting in here having a sexual-harassment class while there are still [victims] in Louisiana who haven’t been contacted yet.”

How much fear of litigation do you need to let a city burn to ensure no one accuses you of failing to protect against sexual harassment? We might be hearing more stories like this, except FEMA, again with its priorities straight, has told firefighters not to talk to reporters. (Lisa Rosetta, “Frustrated: Fire crews to hand out fliers for FEMA”, Salt Lake Tribune, Sep. 6 (via Instapundit)).

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Louisiana protecting medical volunteers

Sydney Smith at MedPundit has a list of volunteer opportunities for medical professionals, and those in a position to donate medical supplies, in the hurricane aftermath. The text of Louisiana Gov. Kathleen Blanco’s executive order on out-of-state medical volunteers is here (PDF) and relevant excerpts appear on the Louisiana State Medical Society site. Briefly, Gov. Blanco’s order suspends licensure requirements for professionals licensed elsewhere and brings out-of-state medical personnel (but not, apparently, those who already practicing in Louisiana) under a liability umbrella by designating them as agents of the state for purposes of tort action provided they “possess[] current state medical licenses in good standing in their respective states of licensure and that they practice in good faith and within the reasonable scope of his or her skills, training or ability.” See Aug. 31, Sept. 2. More ways to help: NOLAHelp.com (via Ernie the Attorney).

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Liability fears delayed evacuation order

Hundreds, and perhaps thousands, died in New Orleans because Mayor Ray Nagin did not issue a mandatory evacuation order until Sunday morning, well after the Saturday mid-afternoon order issued by neighboring parishes. The blogosphere has been wondering what took Nagin and the city so long; Glenn Reynolds has found the answer:

President Bush declared a state of emergency in Louisiana, authorizing federal emergency management officials to release federal aid and coordinate disaster relief efforts.

By mid-afternoon, officials in Plaquemines, St. Bernard, St. Charles, Lafourche, Terrebonne and Jefferson parishes had called for voluntary or mandatory evacuations.

New Orleans Mayor Ray Nagin followed at 5 p.m., issuing a voluntary evacuation.

Nagin said late Saturday that he’s having his legal staff look into whether he can order a mandatory evacuation of the city, a step he’s been hesitant to do because of potential liability on the part of the city for closing hotels and other businesses. [emphasis added]

(Bruce Nolan, “Katrina Takes Aim”, New Orleans Times-Picayune, Sunday, Aug. 28). Once again, the lawyers got in the way of the public-safety decision-making, an issue I discussed Aug. 26.

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Letter from Louisiana: triage and EMTALA

Longtime reader C.G. Moore, a 3L at Tulane Law who lives in St. Tammany Parish outside New Orleans, writes in to say:

My wife, 4 mo. old son, and I survived [Hurricane Katrina] (we live in St. Tammany parish, about 10 miles from lake Pontchartrain). I noticed you had a link to WWL television’s plea for medical personnel to assist the victims. I was in a unique position during the storm and afterward: my wife is an ER doctor, and we sheltered at the hospital where she works.

The doctors and nurses were incredible. They worked non-stop, under incredibly stressful conditions. Many didn’t know where their loved ones were, or whether they had survived, and there was no way to contact the outside world. Many lost everything to the flood waters, tornadoes, and fallen trees. And still, they worked 12-hour shifts (sometimes longer).

But one of the first hurdles they had to contend with was the effects of EMTALA in a disaster situation. [EMTALA is a federal law under which hospitals can be sued if they turn away patients needing emergency medical treatment. — ed.] Under EMTALA, ER physicians are cautious to the point of absurdity. But as the hospital quickly filled to capacity with seriously ill and injured patients, the ER was able to attend to life-or-death situations only. Strict triage procedures were needed to separate the “worried well” from the dying. Medical care really was a limited commodity. Although the magnitude of the catastrophe was clear to all, some patients and their families couldn’t understand that minor boo-boos didn’t merit immediate care (much less admission to the hospital, where it was air-conditioned and they could get a hot meal).

So, my concern is this: once the rubble is cleared and the power restored, the plaintiffs’ lawyers will ooze back into the scene — that this was a disaster situation won’t matter one iota — and they’ll use EMTALA to file lawsuit after lawsuit.

I really hope I’m wrong. But only time will tell.

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“Law and lawyers post-Katrina”

Among its other horrific effects, the hurricane is going to pose a perhaps unprecedented challenge to the resilience of a state legal system, by inundating or otherwise destroying the records of many of Louisiana’s busiest courts, law firms and other participants in the legal process. Prof. Bainbridge has details (Aug. 31). More: Texas Lawyer reports that the administrators of the Fifth Circuit courthouse in New Orleans prudently had staffers bring some files up to the second floor as the storm approached.

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