I sat down with the enemy

Together With

Good morning.  For a long time, I've wanted to sit down with the enemy- an attorney who makes a living suing skilled nursing and senior living communities.  

You know the commercials, "Has your loved one been injured in a nursing home?  If so, call us at..."

I had the opportunity to do so a few weeks ago discreetly.  Our conversation was candid, and based on his request, the attorney will remain anonymous.

I sit down with the enemy

I have to start by stating that none of this is legal advice and should not be perceived as legal advice.  It is, however, interesting and comes with a lot of great takeaways.  There's so much content to fit in I split it up into two newsletters.  Part two will come next week.

What are the most common causes of lawsuits?

• Medication errors
• Falls
• Pressure ulcers
• Infections
• Neglect

Here are some additional tips for reducing the risk of being sued, according to someone on the other side of the courtroom:

• Provide proper training for staff: Staff need to be properly trained in all aspects of care, including medication administration, pressure ulcer prevention, fall prevention, infection control, and resident care planning.
• Use technology to support care: Facilities should leverage technology that is easily accessible, easy to use, and consistently utilized to document the resident's care.
• Encourage staff to report any potential errors: Staff should be encouraged to report any potential errors, even if they are not sure if an error has occurred. So much of what I see is avoidable and comes from a culture where employees don't feel comfortable speaking up, or feel like if they do, nothing will be done.
• Create a culture of safety: Facilities should create a culture of safety where staff feel comfortable and even celebrated for reporting errors and concerns.

Put yourself in the shoes of an Administrator. Your facility just committed a med error that landed a resident in the hospital. What are the dos and don'ts of communicating with the family of a resident after a mistake like that?

Dos:

• Be honest and transparent. Do not try to cover up the error. The family will likely find out about it anyway, and they will be more upset if they feel like you are not being honest with them.
• Apologize. Even if the error was not intentional, it is important to apologize to the family. This shows that you are sorry for what happened and that you are taking the situation seriously.
• Explain what happened. The family will want to know what happened and why. Be as specific as possible, but avoid blaming any individual staff member.
• Assess the resident's condition. The family will want to know how the resident is doing. Be sure to provide them with an update on the resident's condition and what the facility is doing to provide care.
• Offer support. The family may be feeling a range of emotions, such as anger, sadness, and anxiety. Offer them your support and let them know that you are there for them.
• Explain your next steps.  Inform the family how the facility will percent the error from reoccurring with their loved one, or other residents.

Don'ts:

• Don't make excuses. There is no excuse for a medication error. Avoid making excuses or trying to justify what happened.
• Don't minimize the situation. The family may be feeling very upset about what happened. Do not minimize their feelings or try to tell them that it is not a big deal.
• Don't blame anyone. It is important to avoid blaming any individual staff member for the error. This can lead to resentment and can make it difficult to resolve the situation.
• Don't promise anything you can't deliver. The family may ask you for specific things, such as a guarantee that the error will not happen again. Do not promise anything you cannot deliver.

By following these dos and don'ts, you can communicate effectively with the family of a resident after a medication error has occurred. This will help to build trust and rapport with the family and will help to resolve the situation in a positive way.

Is there anything that can be done after the fact to reduce the risk of being sued or reduce liability? For example, do the courts weigh positively if the facility makes a mistake but puts measures in place to respond and fix the issue immediately and urgently?

Yes, there are a few things that can be done after the fact to reduce the risk of being sued or reduce liability. These include:

• Admitting the error: The facility should admit that an error occurred and apologize to the family. This shows that the facility is taking the situation seriously and that it is committed to resolving it.
• Investigating the error: The facility should investigate the error to determine what went wrong and how it can be prevented from happening again. This shows that the facility is taking steps to ensure that the safety of its residents is not compromised.
• Taking corrective action: The facility should take corrective action to ensure that the error does not happen again. This may involve implementing new policies and procedures, providing additional training for staff, or making changes to the facility's environment.
• Providing compensation: The facility may need to provide compensation to the resident or their family for any damages that they have incurred as a result of the error. This may include medical expenses, lost wages, and pain and suffering.

The courts do weigh positively if the facility makes a mistake but put measures in place to respond and fix the issue immediately and urgently. This shows that the facility is taking the situation seriously and that it is committed to resolving it. It also shows that the facility is taking steps to ensure that the safety of its residents is not compromised.

Should administrators carry their own Liability insurance In addition to the organizations?

Whether or not administrators should carry their own liability insurance in addition to the organization's insurance is a personal decision. There are a few factors to consider when making this decision, including:

• The administrator's personal financial situation. If the administrator has a lot of assets, they may want to consider carrying their own insurance to protect those assets in case of a lawsuit.
• The nature of the administrator's job and facility. Some jobs, such as nursing home administrators, are more likely to lead to lawsuits than others. Within that role, some facilities are more likely to be sued than others.  Take this into consideration.
• The cost of liability insurance. Liability insurance can be expensive, so the administrator should factor in the cost when making their decision.

If the administrator decides to carry their own liability insurance, they should shop around for quotes from different insurance companies. They should also make sure that the policy covers the specific risks that they are exposed to.

Here are some of the benefits of carrying personal liability insurance for administrators:

• Protects personal assets: Personal liability insurance can help to protect the administrator's personal assets, such as their home, car, and savings, in the event of a lawsuit.
• Provides peace of mind: Personal liability insurance can provide peace of mind knowing that the administrator is financially protected in the event of a lawsuit.
• Can be affordable: Personal liability insurance can be affordable, especially when compared to the cost of a lawsuit

Under what circumstances can an Administrator be held personally liable?

An administrator can be held personally liable for their actions in a number of circumstances, including:

• Negligence: If an administrator fails to act with the care that a reasonable person would take in the same situation, they may be liable for negligence. This could include failing to provide adequate care to a resident, failing to supervise staff, or failing to follow safety regulations.
• Breach of contract: If an administrator breaches a contract with a resident or their family, they may be liable for damages. This could include failing to provide the services that were promised, failing to keep the resident's records confidential, or failing to return a security deposit.
• Fraud: If an administrator commits fraud, they may be held liable for damages. This could include falsifying records, misrepresenting the quality of care, or taking advantage of a resident's vulnerability.
• Intentional torts: If an administrator intentionally harms a resident, they may be held liable for damages. This could include assault, battery, false imprisonment, or invasion of privacy.

The specific circumstances under which an administrator can be held personally liable will vary depending on the state's laws. It is important for administrators to be aware of the risks and to take steps to minimize their liability.

Here are some steps that administrators can take to minimize their liability:

• Get training: Administrators should get training on the laws and regulations that govern their profession. This will help them to understand their legal obligations and to avoid making mistakes.
• Create policies and procedures: Administrators should create policies and procedures that outline the standards of care that will be provided to residents. This will help to ensure that all staff members are aware of what is expected of them and that they are held accountable for their actions.
• Supervise staff: Administrators should supervise staff to ensure that they are providing care in accordance with the policies and procedures. This will help to identify and correct problems before they lead to injuries.
• Report errors: Administrators should encourage staff to report errors so that they can be investigated and corrected. This will help to prevent errors from happening again.
• Document everything: Administrators should document all interactions with residents and staff. This will help to create a record of what happened and who was responsible in the event of a lawsuit.

I get this one a lot, if I’m investigating an incident, what do I need to do to ensure the investigation and those documents and information are protected and not discoverable?

If you are investigating an incident, it is important to protect the investigation and the documents and information related to the investigation from being discoverable. This can be done by taking the following steps:

1. Conduct the investigation in a confidential manner. This means that only those who need to know about the investigation should be made aware of it.
2. Keep all documents and information related to the investigation confidential. This means that the documents and information should not be shared with anyone who does not need to know about them.
3. Create a privilege log. A privilege log is a list of all documents and information that are protected by a privilege, such as the attorney-client privilege or the work product doctrine. The privilege log should be kept confidential and should not be disclosed to anyone who does not need to know about it.
4. If the investigation leads to a lawsuit, the documents and information related to the investigation may be protected from discovery by the attorney-client privilege or the work product doctrine. The attorney-client privilege protects communications between an attorney and their client. The work product doctrine protects documents and information that are prepared in anticipation of litigation.

It is important to note that the laws governing discovery vary from state to state. Therefore, it is important to consult with an attorney to ensure that the investigation and the documents and information related to the investigation are protected from discovery in accordance with the laws of the state in which the investigation is being conducted.

Here are some additional tips for protecting an investigation from discovery:

• Use a neutral third party to conduct the investigation. This will help to ensure that the investigation is conducted fairly and impartially.
• Keep the investigation confidential. This will help to protect the rights of all parties involved in the investigation.
• Be careful about what you say and do during the investigation. Everything you say and do could be used against you in a lawsuit.
• Get legal advice. If you are unsure about how to protect an investigation from discovery, you should get legal advice from an attorney.

Next week we will publish Part 2 of the interview...

Together with ARC

ARC (Audit-Review-Correct) is an innovative, web-based auditing tool, created by LTC Integrity and offered by Prime Care Technologies, that helps nursing facilities ensure QAPI compliance and improve quality of care. Developed by a team of highly experienced nurses, executives and attorneys, ARC is a provider-created software that satisfies the industry’s critical need for an automated, QAPI management platform that saves SNF leaders time and resources and minimizes the serious legal and financial risks of federal non-compliance.

Visit http://www.ltcintegrity.com for more information.

About Prime Care Technologies
Since 2003, Prime Care Technologies has offered long-term care providers flexible hosting, managed services, and cloud software tailored to their needs. This Atlanta-based company has 150 employees and 200+ healthcare/IT partnerships, and its technology-driven solutions are installed in more than 7,500 facilities. In addition to its multi-vendor interoperability expertise, Prime Care Technologies offers a data warehouse and claims clearinghouse that integrates 70+ healthcare applications and 3,500+ EDI payers. Visit http://www.primecaretech.com for more information.

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