November 01, 2007
Ask the legal expert
Attorney John Durso, Ungaretti & Harris LLP
What are the most important lessons from the trial of the Manganos, the New Orleans facility owners who didn't evacuate for Hurricane Katrina and were recently acquitted of negligent homicide charges?
The primary lesson to be learned is that providers of services to frail elderly or disabled resident populations must have a disaster evacuation plan in place that complies with all federal, state and local requirements. Furthermore, when a disaster takes place, the provider must have made arrangements to safely and in a timely manner place residents in a secure and as safe as possible location.
Failure to have such a disaster plan, as well as failure to properly execute any necessary evacuation plans, could lead to governmental fines and penalties, as well as civil law exposure for damages under negligence theories.
Providers are faced with an almost Catch-22 situation, as liability might arise for failure to evacuate, evacuating when not necessary, or alleged poorly executed evacuations (e.g., inadequate or unsafe transportation).
In all potential evacuation situations, providers should notify state officials who oversee the provider and obtain, whenever possible, their consent or affirmation of a decision to evacuate or stay put. Even if these governmental overseers will not participate in the decision-making, the provider, by at least notifying public officials, might help a finding of the necessary intent or other requirements of a crime.
Regardless of the outcome of a criminal case, even though the providers might ultimately be found not guilty of a crime, to respond to a criminal prosecution can be costly, time consuming – and a nightmare. Fate as to jail time could hinge on an unpredictable jury viewing the situation after a terrible outcome by focusing on deaths or serious injuries that resulted.