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We Have a Pandemic


Steven "Steve" D. Gravely

Erin S. Whaley

The World Health Organization (WHO) announced on June 11, 2009 that we are now in a global pandemic. In raising its pandemic influenza alert level to 6, the highest level possible, the WHO noted “[w]e are in the earliest days of the pandemic. The virus is spreading under a close and careful watch.” The H1N1 virus that first emerged in Mexico in April 2009, while relatively mild, has now spread to 76 countries and has stubbornly persisted beyond the northern hemisphere’s traditional flu season.

With the southern hemisphere entering its peak flu season, the WHO has grave concerns that a much more serious form of the H1N1 virus is imminent in the northern hemisphere later this year. Everyone, especially health care providers and others who are involved in our nation’s critical infrastructure, must immediately begin preparing for the strong possibility of a very serious flu outbreak as soon as September 2009. Failure to properly plan to be able to respond effectively to a public health emergency will expose your organization to significant liability.

On June 4, 2009, Trust for America’s Health, the Robert Wood Johnson Foundation, and the Center for Biosecurity of University of Pittsburgh Medical Center published a report titled “Pandemic Flu Preparedness: Lessons from the Frontlines.” The report presents key lessons learned during the early days of the current H1N1 flu outbreak and identifies areas of vulnerability which will allow the health care system to become quickly overwhelmed as the disease becomes more widespread and more severe. Planning recommendations are provided to address the numerous vulnerabilities including

• maintaining the strategic national stockpile;
• developing, producing and distributing vaccine;
• enhancing federal, state, local and private coordination in both preparedness and response;
• re-examining community mitigation strategies, including the impact of school closures and cancellation of public events;
• adequate funding to secure the availability of the nation’s public health infrastructure;
• caring for the uninsured and underinsured; and
• continuing the development of health care provider surge capacity.

While all of these vulnerabilities will impact health care providers, it is really the last two – caring for the uninsured and the underinsured and development of surge capacity – that will have the greatest impact. According to the Center for Biosecurity, “U.S. hospitals could lose as much as $3.9 billion in uncompensated care and cash flow losses in a severe pandemic.” In response to this staggering figure, hospitals and other health care providers must carefully and thoughtfully develop continuity of operations plans to mitigate this loss, to the extent possible, and persevere in the face of it.

While hospitals may lose money during a pandemic, they will see a surge in demand. The report accurately acknowledges that “many of the surge capacity problems have been identified -- including having enough stuff, staff, and space to treat patients --- but solutions to these problems are often lacking.” Nonetheless, health care providers must do what they can now, before the true emergency occurs, to prepare to surge by altering standards of care and addressing the associated legal and ethical concerns.

While the outbreak of H1N1 in the United States continues, there may be a leveling off and decrease in the number of new cases as we enter the summer months. We can not afford to become complacent, however. Now is the time to prepare for a re-emergence of the disease in the fall.

Troutman Sanders LLP has been actively involved in influenza pandemic preparedness planning since 2005 and has prepared a number of white papers and planning guides to assist health care providers preparing for emergencies and disasters, including an influenza pandemic response. To access Troutman Sanders LLP’s Pandemic Influenza Resource Center, which contains many of the tools that we have developed, please visit Please contact Steve Gravely or Erin Whaley for more information on how Troutman Sanders can assist with your pandemic influenza preparedness needs.

“Pandemic Flu Preparedness: Lessons from the Frontlines” can be found at