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Heading Off Legal Claims-Before They Happen

March 1, 2004
by root
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Reduce the chance of lawsuits by identifying the incidents likely to trigger them by Mardy Chizek, RN, FNP, BSN, MBA, AAS, CLNC
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 The best way to prevent negative incidents and poor outcomes in long-term care facilities is, of course, to provide high-quality care. But in an imperfect world, under circumstances that sometimes can be less than optimal, such occurrences are bound to arise. How can they be handled so that your facility isn't faced with a costly, reputation-damaging lawsuit?

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.

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.

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.