When a community needs to heal, individual claims are not enough. Collective harm also needs to be addressed. As the Deepwater Horizon disaster shows, resources for regional recovery can and should be included in toxic tort court decisions or settlements.

Ayanna V. Buckner is a medical doctor and principal of the Community Health Cooperative in Atlanta, Georgia.

Film critics gave Erin Brockovich positive reviews. Some were delighted to see an A-list movie star, Julia Roberts, portray a strong woman who, according to the story’s tag line, “brought a small town to its feet and a huge company to its knees.” However, a reviewer for Sight & Sound astutely noted that the work’s “near-fairytale resolution doesn’t offer a magical transformation” for the community as a whole, which remained underserved.

Brockovich and the citizen plaintiffs received a huge settlement from Pacific Gas & Electric, which poisoned their water supply, but moviegoers did not see the impact of those funds on the community. This is a significant omission. There were several hundred plaintiffs in the same locality, each of whom received a share of the money, but the film didn’t show what happened to the neighborhood after the credits rolled.

When a common interest such as health is affected by a toxic tort incident, it is paramount to consider what is needed to allow not just citizens but the community as a whole to recover. Funds that simply address the needs of individuals do not sufficiently address the collective impact of the toxic tort incident.

There is an important lesson here. It starts by investigating the community needs after a massive toxic tort. In the town of Hinkley, California, site of Brockovich’s litigation, community needs begin with a safe drinking water supply. But they may also include funding for public health surveillance systems that would recognize an unexpected increase in cancer and other medical problems associated with environmental toxins like hexavalent chromium, the chemical at issue in Hinkley. There is also a necessity for training local primary care providers to diagnose and treat these conditions, or possibly expansion of services and staff to include environmental health and toxicology as well as associated psychological needs.

Toxic tort awards or settlements are designed to allow injured parties to recover damages for environmental exposures. They traditionally focus solely on the individual, and little thought is typically given to awarding damages on the community level. Yet a locality is changed by a massive toxic tort, and any decision or settlement needs to take that into account. Integrating community-level approaches into toxic tort outcomes may challenge orthodox practices, but doing so has the potential to exponentially enhance the impact of resolutions. A community-level approach should not necessarily replace individual damages, but it provides a novel solution to maximize benefit for members of the affected class, particularly when their neighborhoods are located in historically underserved regions.

Research has shown that environmental disasters frequently have the largest impact on poor and medically underserved communities that already have some of the worst health outcomes. These communities usually have fewer financial resources, are less likely to evacuate, and lack health resources and/or access to health care before the disaster as well as during the recovery period. Research has found that poor and medically underserved communities experience delayed treatment of preexisting or new conditions (either physical or mental) after a disaster, and their conditions worsen due to fewer chances for early treatment.

Health disparities have plagued the gulf region for decades. Alabama, Louisiana, and Mississippi consistently rank at the bottom of states in many important health ratings, including overall health, infant mortality, and prevalence of chronic conditions such as diabetes, hypertension, stroke, and obesity. Florida, while better, remains in the bottom 50 percent. Within these states, the communities along the gulf are among the most vulnerable, and the challenges posed by poor health outcomes are greater.

Preexisting disparities make communities more prone to acts of nature such as hurricanes, and they add to the deleterious repercussions of man-made disasters such as the 2010 Deepwater Horizon oil spill. Medically underserved communities have prompted national discussions about health disparities, and more recently, health equity. Whether they are at risk for environmental disaster because of their geographic location or because of their proximity to artificial risk factors, for many communities it is not a matter of if but when an environmental disaster may occur. Gulf Coast communities such as New Orleans and Houston and smaller localities right on the gulf shoreline are recent examples, but myriad other cases exist across the country and abroad. The focus on health disparities and health equity should not be forgotten when toxic spills or similar disasters occur. Instead, they should be a key consideration that guides decisionmaking around how toxic tort decisions and settlement agreements are approached.

Given the inherent complexities of toxic tort litigation, one might question the utility of adding another matter on which the parties must reach agreement or that judges or juries must consider in rendering a decision. Also, incorporating community considerations into settlement negotiations might prompt a series of questions about the focus of the program, who would be covered, and how it would be run. A program that arose from the settlement agreement associated with the largest environmental disaster in American history provides answers to these pertinent questions.

According to the report of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, more than 200 million gallons of oil spilled into the Gulf
of Mexico after the explosion of the rig in April 2010. The spill exacerbated a fragile situation in Gulf Coast communities attempting to heal after hurricanes Katrina and Rita and highlighted the public health and health-care deficiencies that individual claims could not address. Without the proper health infrastructure, Gulf Coast communities would continue to be medically at risk.

There remained a space for a program to address many of the longstanding health inequities that exist in gulf communities. Such a program would focus on integration and collaboration among academic, clinical, and local partners. It would build on existing neighborhood capacity in order to develop sustainable initiatives aimed at strengthening the community building blocks of the region.

In addition to a settlement agreement on economic and property damages between BP and Gulf Coast residents, a medical benefits settlement agreement allows class members to seek compensation for a specified physical condition, offers participation in the Periodic Medical Consultation Program, and offers the provision of a “back end” litigation option process for physical conditions that become manifest later.

However, there is also a lesser-known, community-focused component of the medical agreement that is the focus of this article. The Gulf Region Health Outreach Program is a unique approach to use a classic toxic tort settlement to address community health damage that is not readily addressable through standard tort practices. The GRHOP was developed jointly by BP and the Plaintiffs’ Steering Committee as part of the Deepwater Horizon Medical Benefits Class Action Settlement, which was approved by the U.S. District Court in New Orleans on January 11, 2013, and became effective on February 12, 2014.

Supervised by the court and funded with $105 million, the GRHOP was established “to expand capacity for and access to high quality, sustainable, community-based healthcare services, including primary care, behavioral and mental healthcare, and environmental medicine, in the Gulf Coast communities in Louisiana, Mississippi, Alabama, and the Florida Panhandle.”

The program is a result of negotiations between BP’s counsel and the Plaintiffs’ Steering Committee over the terms of the class action settlement. The talks provided an opportunity to explore the needs of localities and approaches that could be undertaken through the settlement agreement to address the needs. The steering committee expressed concern about potential physical and mental health effects of the spill on residents of Gulf Coast communities, and they felt that a settlement needed to address such issues.

Both sides consulted with medical and public health experts. They decided to put aside their disagreements about the cause of the medical issues faced by those along the Gulf Coast and chose to work together on an unusual solution aimed at improving healthcare capacity and access for class members directly, and potentially Gulf Coast residents indirectly, that would benefit the historically underserved region. By sharing the proposals — many of which were unsolicited — for discrete public health projects in the context of settlement discussions, BP’s counsel and the plaintiffs’ committee recognized the synergies among the various projects. They were then able to craft an integrated, multifaceted public health program in which the whole could be greater than the sum of its parts.

T he GRHOP was designed as a series of five integrated five-year projects to strengthen healthcare in certain Gulf Coast communities affected by the oil spill. The target beneficiaries are residents, especially the uninsured and medically underserved, of 17 coastal counties and parishes in Alabama, Florida, Louisiana, and Mississippi. As one of the four types of benefits contained in the Deepwater Horizon Medical Benefits Class Action Settlement, the GRHOP is the benefit that stands to have the greatest impact because of its population-based approach and its focus on activities designed to produce sustainable benefits to communities that last beyond the program’s five-year funding period.

The lynchpin to the sustainability of the program is the use of existing local capacity such as federally qualified health centers, or FQHCs, or other local health clinics as the hub that integrates the GRHOP projects. FQHCs are community-based healthcare organizations, operated under the supervision of the U.S. Department of Health and Human Services, that are required to provide comprehensive primary and preventive care, including health, oral, and mental and behavioral health services, regardless of the patient’s ability to pay. FQHCs receive a number of benefits from the federal government, including enhanced Medicare and Medicaid reimbursement rates and the ability to purchase outpatient drugs at a below-market price. One of the most significant strengths of the GRHOP is its leveraging of its funds with existing federal programs.

The ultimate goal of the GRHOP is to inform residents of the targeted communities about their own health and provide access to skilled frontline providers supported by networks of specialists knowledgeable in addressing communities’ physical, environmental, and behavioral and mental health needs, thereby improving the resilience of the targeted localities to future health challenges. The program consists of projects to build the capacity of primary care community health clinics in the region. These include increasing the mental and behavioral health expertise of medical professionals in the target neighborhoods and increasing awareness by local communities of mental and behavioral health issues. Another goal is to increase the environmental health expertise of medical professionals in the targeted communities and the health literacy of local residents. Community health workers are trained to help residents navigate the healthcare system and access needed care. And a program coordinates community involvement within and across all GRHOP projects.

The Medical Benefits Settlement Agreement established the GRHOP Coordinating Committee to ensure that the respective projects function in a cooperative and integrated manner and have reasonable flexibility to adjust their respective implementation to respond to changed needs and circumstances. The committee is composed of representatives from each of the projects as well as three unaffiliated members, one of whom serves as chairperson. The committee meets on a quarterly basis, and Medical Benefits Class Counsel and BP representatives may attend the meetings as observers at their own expense. The committee also meets via teleconferences between the in-person meetings, both as a full committee and in subcommittees — some formed to take action on short-term issues and others to address long-term functions such as evaluation of the overall program, communication with stakeholders, and collaboration across the GRHOP projects to promote and publicize program successes.

The court appointed a claims administrator to implement and administer the Medical Benefits Settlement Agreement in accordance with its terms and conditions, including administrative responsibilities in support of the GRHOP and the coordinating committee. In addition, there is a GRHOP Library — a publicly accessible, text-searchable, indexed, online electronic repository that contains reports, articles, studies, etc. The claims administrator maintains the library, and it is updated annually. The library will remain in existence for 21 years following the Medical Benefits Settlement Agreement’s effective date, thus serving as a strategic tool to disseminate the lessons learned from a regional, community-based model for addressing environmental exposures and impact.

In keeping with the specifications of the Medical Benefits Settlement Agreement, the GRHOP’s emphasis on high quality is fundamental to effective program implementation. Evidence-based models and best practices that have been demonstrated to address needs in the most vulnerable communities underscore the quality of the programs’ activities. Project leaders have combined existing community-level health data with targeted local and regional community health-needs assessments to inform priority areas within the specified counties and parishes. The program is further enhanced through the suite of interconnected resources provided to the selected community health centers across the Gulf Coast.

For example, each FQHC receives direct funding (support for technology, staffing, capital improvements, etc.) from the Primary Care Capacity Project as well as customized technical assistance (quality improvement and financial management, health information technology, etc.). The Mental and Behavioral Health Capacity Project offers health providers who are integrated within the FQHC’s primary-care services and also delivers training to help providers identify and manage the mental and behavioral health conditions that are appropriate for treatment in the primary-care setting. The Environmental Health Capacity and Literacy Project provides training for the FQHC’s primary-care clinicians to evaluate patients with environmental health complaints and provides an environmental health medical specialist for the patients, as needed. The Community Health Workers Training Project trains community health workers and peer health advocates and provides funding opportunities so that selected FQHCs and community-based organizations can hire them to help residents navigate the healthcare system, access needed care, and provide educational resources and other support to patients and community members. The Community Involvement Project subcontracts with local organizations to assist in outreach and project coordination. All these organizations are engaged in partnerships that support the FQHC’s outreach and education efforts.

Sustainability, another attribute specified in the Medical Benefits Settlement Agreement, provides a strong argument in support of initiating community-level programming through toxic tort awards and settlements. The coastal counties and parishes that benefit from the GRHOP are located in states that have consistently held the lowest health rankings. Since an environmental exposure has the potential to instigate new health conditions (either physical or mental) and exaggerate existing ones, a health system in a vulnerable area may lack the capacity to meet a community’s imminent needs. Therefore, the GRHOP projects are embedded in and complement, rather than detract from or replace, the existing efforts being undertaken by the public health community. By building upon existing community-health resources, the GRHOP promotes and leverages the resilience of the system and subsequently positions the enhancements provided through programming to be sustained.

For example, the Primary Care Capacity Project builds the capacity of FQHCs by providing them with direct funding and delivering customized technical assistance to assist centers with sustaining services. The project also supports regional health information exchanges, regional care collaboratives, and infrastructure investments that can be utilized to address relevant health issues ranging from health inequities to emergency preparedness and response for natural or technological disasters. Additionally, the training provided through the Environmental Health Capacity and Literacy Project, Mental and Behavioral Health Capacity Project, and Community Health Workers Training Project provide healthcare workforce development aimed at advancing and sustaining improved physical and mental health outcomes. Furthermore, the efforts by the individual GRHOP projects and collective work of the coordinating committee to evaluate the programming and disseminate findings via academic and community-based conferences, journals, media coverage, and GRHOP’s website and library, to mention a few, position the project leaders to continue their work by applying for and obtaining financial support from private and public sources after the funding period ends.

The GRHOP is a promising example of how toxic tort settlements or awards can be used to simultaneously mitigate the impact on a community and invest in it. The projects build capacity from the ground up, involving local communities, each of which may have very different needs. In particular, within the culturally and ethnically diverse gulf, there is no one-size-fits-all solution to healthcare problems. The GRHOP recognizes this fact and translates it into a model that is reflective of the communities it serves. It creates, reinforces, and expands local networks and partnerships to construct a bridge from environmental disaster to improved physical and mental health. Through its integrative and collaborative approach, the GRHOP is building a strong foundation on which the region can continue to build its healthcare system for years to come.

The program is replicable, feasible, and reflective of the expectations associated with a high quality and sustainable health program, and it presents a model that can be scaled up or down to complement a given community in other toxic tort situations. The program’s reliance on the existing talent and brainpower in the gulf region, among them nationally and internationally recognized leaders, deepens the program’s impact. Finally, the GRHOP can also serve as an impetus for environmental law professionals to recognize and champion the opportunity afforded by toxic tort settlements and awards to make an enduring impact beyond the conventional approach of an individual settlement. TEF