Heading Off Legal Claims-Before They Happen

Adverse incidents don’t have to lead to lawsuits if there’s a plan in place for responding to them

BY MARDY CHIZEK, RN, FNP, BSN, MBA, AAS, CLNC

Carefully listening to residents, communicating with residents and their families, and actively intervening to prevent or resolve problems can go a long way toward maintaining customer satisfaction in long-term care facilities. If, however, your staff are too busy to report negative incidents, if they are unaware of signs that could forewarn them of an impending problem, or if they fear the repercussions of reporting anything negative, residents and their families might end up feeling that no one in your facility cares. Once they have that perception, their next step might be to seek legal counsel, and before you know it, you’re facing a lawsuit.

Three basic steps are involved in risk management as it pertains to avoiding legal claims: identification, investigation, and intervention. These steps are discussed below.

Identification
The first step in preventing/resolving adverse events affecting residents is identification. Before staff members can be proactive in this regard, they need to be made aware of incidents they might encounter that would indicate the presence of or potential for a legally sensitive problem. One effective risk management approach that helps to foster such staff awareness is to distribute a list of potentially compensable events (PCEs) that can serve as an early warning system. A sample list of PCEs is shown in the table; while the list isn’t all-inclusive, it includes those events that are most frequently cited as claim allegations. Early identification of these PCEs can reduce the number of claims or mitigate problems that have already occurred and could lead to claims.

Investigation
The next step, if a negative incident has already occurred, is to conduct an in-depth investigation immediately. To protect the findings of this investigation from discovery in the event of litigation, the investigation should be conducted as part of the facility’s peer review/quality assurance process. A facility might, for example, have its Quality Improvement (QI) Committee form a Risk Management Subcommittee to investigate these occurrences. In this scenario, a member of the Risk Management Subcommittee would complete the investigation and report the findings to the QI Committee.

For maximum protection of the quality assurance information, skilled nursing facilities should “maintain a ‘privilege log’ of quality assurance documents in order to aid the court in its assessment of whether the quality documents are protected….”¹ This guidance comes from a New York State Court of Appeals case (Subpoena Duces Tecum v. Jane Doe), in which the court unanimously ruled that the attorney general’s Medicaid Fraud Control Unit “could not obtain [quality assurance] documents…with a subpoena because the reports were solely generated for quality assurance purposes and are not mandated by statute or regulation.”¹ [Disclaimer: Before implementing privilege logs, consult with legal counsel to ensure that they comply with all relevant statutes.]

Because the protection of any actionable information gathered during an investigation of a PCE is paramount to the investigation, organizations should always check with legal counsel before establishing anysystem. Keep in mind that each jurisdiction is different, so tailoring the process to the locale is mandatory. Two approaches can be taken. One option is for defense counsel to request and direct the Risk Management Subcommittee’s investigation. (This should not be the attorney who serves as the organization’s corporate counsel; rather it should be an attorney with expertise in this area). The other option is for the organization’s liability insurance company’s legal counsel or claims representatives to direct the investigation.

The organization’s board of directors or owners should have an active role in the oversight of all quality and potential claim information generated by a facility or facilities. These bodies have fi duciary responsibility for the quality of services delivered by their organization. Although they don’t directly provide those services, they are nevertheless responsible and should be kept informed. Two-way communication of peer review (quality assurance activity) and risk management activity between the board/owners must be demonstrated through documentation. This establishes the formality of the system and supports the protection of quality assurance documents and highlights the fact that they are bona fide quality materials.

Regardless of who is involved in the investigation, investigators must place themselves in the mind-set of the resident and family, which will require objectivity. Because it is difficult to be objective when one is feeling personally or professionally attacked by a resident, it might be beneficial, if not essential, to have an external resource review the facility’s documentation, systems, and processes during the investigation. Resources that might be tapped are professional risk managers from your liability carrier, state peer-review resources, or independent consultants.

If employee statements are required as part of the investigative process, it is best to interview employees and record their responses for them, rather than allowing them to write their own statements. If an incident does come to litigation, employee statements will have to be defended as written, which is frequently problematic. For example, if an employee writes, “I was walking down the hall and heard someone verbally abusing a resident,” the plaintiff has a head start on an abuse allegation. If, however, the investigator asks the employee what he or she heard and records the response as, “I was walking down the hall, entered a room, and heard a voice that I could not identify speaking loudly to someone in the adjacent room,” the staff member’s observation won’t automatically implicate the facility or staff in any wrongdoing. After the investigator directs the questioning and documents the employee’s response, he or she should then have the employee read, sign, and date the documentation.

Intervention
The final step in this risk management process is intervention. If a facility’s system is effective-at listening to residents, communicating with residents and families, and identifying problems-a resident who has had an unsatisfactory experience will likely remain in the facility after the incident has been identified. Trying to hide, minimize, or deflect responsibility for such a problem are clearly not wise risk management strategies. Therefore, the first proactive approach is to listen. The family will tell you what they are unhappy about. Once you know, you can tailor your response to their problem. If you start talking without letting them share their concerns, you may add to the problem by giving them extra ammunition that they were not even aware of, and you will not address their concerns because you won’t know what they are.

The following is a scenario demonstrating appropriate and adequate communication with a family. A resident has fallen and experienced a fracture. The family states that they are not happy because the resident was not restrained. The response might be:

All of the staff who cared for your mother at ABC facility are really sorry about your mother’s injury. She is very special to all of us. I can only imagine how difficult it is for you to see her in the hospital and away from her home here. I have talked to the hospital, and we will have her back here as soon as possible.

I understand that you are concerned about restraints. Years ago it was customary to use restraints in nursing homes, but research and experience have demonstrated that restraints are more harmful than helpful in the elderly. We use a variety of options in our facility and have used X, Y, and Z with your mother. Our goal is to keep our residents as mobile and active as possible, and restraints lead to more rapid deterioration and falls that result in a greater rather than a lesser injury.

Again, I am sorry about the occurrence that led to your mother’s hospitalization/surgery. Please know that you are in our thoughts, and please let us know if there’s anything we can do to help you.

Residents and families want to hear that the administration and staff are sorry for any inconvenience they might have experienced because of the organization. A simple “I am sorry” lets residents/families know you care, and it is not an admission of “guilt.”

It is also important during the intervention to carefully choose the person who will communicate with the family after a problem has occurred or if trouble appears to be brewing. The facility representative must have excellent listening skills, be empathetic, be trusted and respected by the family, and must not be defensive. This person must also make him/herself available at the family’s convenience, and not vice versa. The best candidate to serve as this key communicator might not be the DON or administrator. Any person who has the skills and a formal or informal leadership role is appropriate.

Another aspect of intervention that shouldn’t be overlooked is critical evaluation of the facility’s organizational systems and processes, for the purpose of identifying opportunities for improvement. Most adverse occurrences happen not because of an incompetent employee, but because the system is flawed, so processes must be in place to continuously monitor the operation and make needed improvements.

In summary, the nursing facility must have a formal process for identifying PCEs. Once an adverse occurrence (i.e., a PCE) has been identified, the real work begins. An in-depth, objective investigation must be carried out immediately, under the direction of legal counsel or the facility’s insurance company, if possible.

The resident and his or her family must be included in this process early on. Open communication channels must be established and maintained throughout the process, and updates should be provided to them frequently.

When the cause of a negative incident has been identified, system-wide changes must be implemented to prevent such an event from happening again. These measures must be part of the peer review/quality improvement processes and documented as such. Certainly, the best method of preventing claims and poor outcomes is to constantly monitor the system in this way and provide improvements in a timely fashion.

1. Resident, family, or attorney requests medical records.
2. Resident dies unexpectedly or of an unexplained cause.
3. Resident or visitor falls, resulting in a fracture or an adverse outcome requiring intensive medical or surgical intervention.
4. Resident or family member comments about securing legal counsel.
5. Resident elopes, with or without injury.
6. Resident develops a (facility-acquired) decubitus, stage II or greater.
7. Resident or resident’s family alleges physical or sexual abuse.
8. Resident’s family is “diffi cult.”
9. Resident frequently has or causes problems.
10. Resident or family reports an adverse report or outcome to the state licensing agency.
11. State licensing agency comes to facility at family’s request.
12. Resident already has an outstanding lawsuit.
13. Resident has history of frequently moving from facility to facility.
14. Resident has an unresolved billing issue.
15. Family is taking resident from the building because of quality concerns.

Reference
1. NYS Court: Quality assurance reports privileged. Provider May 2003:11,14.