It is Tuesday, October 5th. Downtown Birmingham is abandoned. The few who are present on the street wear white paper masks. The downtown hospitals’ emergency rooms overflow with the elderly and small children, coughing and wheezing. Some who began to feel ill only this morning will be dead by nightfall. Under large white tents, people wait in endless lines for medications that are in short supply. There are 5,000 individuals in the Birmingham area who have contracted pandemic influenza. In this week alone, 135 people will die from the disease. It may seem like a far-fetched doomsday scenario, but on October 5, 1918, this was reality in Birmingham. Between 1918 and 1919, 675,000 deaths occurred in the United States from the so-called “Spanish flu” alone. In 1957, the Asian influenza pandemic killed 69,800 in the United States. In 1968, a pandemic influenza strain resurfaced, this time as the “Hong Kong flu,” killing approximately 33,800 Americans. The most recent pandemic threat, avian influenza (“bird flu”) emerged in 1997, hospitalizing 18 in Hong Kong. Although media attention concerning the bird flu has declined since its height in 2006, when there were 115 cases and 79 deaths, the risk of a pandemic remains a reality. While scientists cannot predict when an avian influenza pandemic might surface, many agree that it will occur. But how would such a pandemic occur? An epidemic capable of disrupting national economies and killing untold thousands begins humbly enough as a virus, H5N1, residing in the intestinal tract of Asian waterfowl. The virus passes from the waterfowl to infect poultry, and may then be passed from poultry to humans. In order for a pandemic to occur, however, H5N1 must mutate so that it is capable of human-to-human transmission. The World Health Organization reported on April 3, 2008, the first confirmed human-to-human transmission of the H5N1 virus, which occurred in Peshawar, Pakistan, in December 2007. If another influenza pandemic strikes, experts project that, based upon the 1957 and 1968 pandemics, between 839,000 and 9,625,000 individuals will be hospitalized. Another 18 to 42 million will likely visit outpatient facilities in the event that an influenza pandemic occurs. Even a merely “mild” pandemic could increase the demand for inpatient Intensive Care Unit beds and ventilators by 25 percent. Those working in the healthcare industry will not only be essential in responding to a potential pandemic, but will also be among the most likely to become infected with the disease. Accordingly, healthcare entities and their employees must be prepared to respond to — and withstand — pandemic flu. To that end, the Occupational Health and Safety Administration (OSHA) has developed pandemic planning checklists for home healthcare agencies, medical offices and clinics, emergency medical transport services, hospitals, long-term care facilities and health insurers. In addition, the Department of Health and Human Services (HHS) suggests that hospitals’ pandemic plans include such measures as hospital surveillance for pandemic flu; a means of communicating with public health officials and other governmental agencies; pandemic influenza education for staff and patients; protocols for facility access, acquisition and stockpiling of vaccines and antiviral drugs; and management of ill workers. Even in the case of a public health emergency, certain legal strictures will continue to apply. For example, the Americans with Disabilities Act provides protections for persons with disabilities, even in a state of emergency. In addition, OSHA has released protocols for healthcare workers to utilize in order to minimize the spread of disease. Even constitutional provisions may be implicated, such as the Due Process and Equal Protection Clauses, should healthcare entities discriminate against suspect classes when implementing their pandemic plans. Fortunately, certain statutory provisions may allow for the bending of legal requirements in the event of a pandemic. For example, Alabama’s statutory state of emergency provision allows the governor to suspend any laws that would impede recovery after a declared state of emergency. In addition, Good Samaritan laws and sovereign immunity provisions (in the case of governmental employees) may protect healthcare workers against civil liability for intentional or negligent acts or omissions. Perhaps the most difficult part of planning for an avian influenza outbreak is admitting that a pandemic capable of killing thousands is not only a possibility, but a likelihood. Comprehensive planning and preparation, however, offer hope that the hard lessons of 1918, 1957 and 1968 will not go unheeded. Robin Franco is an associate in the Balch and Bingham Healthcare Practice Group. May 2008