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How to Get Sued in Five Easy Steps

May 1, 2006
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Sound advice (by negation) on avoiding litigious missteps by Martha E. Leatherman, MD, and Katherine E. Goethe, PhD
MARTHA E. LEATHERMAN, MD, AND KATHERINE E. GOETHE, PHD How to get sued in five easy steps
Experienced observers tell how facilities place themselves at risk
Everyone involved in long-term care faces the looming specter of lawsuits. Although some suits have merit, some unscrupulous attorneys exploit the public's fear of old age to deliver huge jury awards in cases against long-term care providers. Even in assisted living facilities, which have historically been somewhat insulated from litigation, that special status is starting to change. For example, a family sues an assisted living facility in Wisconsin for frostbite injuries sustained when an elderly woman suffering from dementia wanders outside in freezing weather, and a family sues because a man chokes on food and a state survey shows that the only caregiver on duty was not properly trained in basic CPR. Just because your facility "would never allow" such things to happen doesn't mean that it's invulnerable.

So let us serve as devil's advocates. We are clinicians who work almost exclusively in long-term care. We have discussed care-good and bad-at length with hundreds of residents and family members. One of us has served as an expert defense witness on behalf of facilities being sued. One of us has had several family members living in long-term care facilities. We believe that we are uniquely qualified, therefore, to show you in no uncertain terms how you can get yourself thoroughly and successfully sued. If you do the opposite of what we say, you might just have a chance. We follow these steps with some italicized recommendations that we think you should follow.

Step One
Invest in impressive marketing materials such as brochures and advertisements that promise potential clients "comprehensive care" or "aging in place." When physical or behavioral problems arise, blame the resident.

We are called time and again to examine residents who "refuse" to stay in their wheelchairs. Staff tell us that no matter how often they remind a resident, "He just will not stay seated and always wants to get up." We have seen residents with documented diagnoses of dementia (and clear clinical symptoms) left without even a lap restraint for hours in a dark room alone. When the resident falls, the family is told, "He never listens, but he knows not to get up on his own."

It is imperative to fully understand how dementia affects the actions and judgment of a resident. This cannot be overstated. As many as 50% of your residents likely have some form of dementia, and you cannot adequately care for them if you don't have as clear an understanding of dementia as you do of decubitus ulcers. Residents with dementia cannot be expected to take responsibility for their own safety. If they could, they likely would not be in your facility in the first place.

Step Two
Avoid documentation that accurately reflects the resident's condition.

Nothing is more frustrating than to be asked to treat a resident for aggressive behavior with no information on the resident's mood, appetite, level of arousal, or calls for help. The explanation usually given to us is, "He's always this way." We have seen residents who are actively hallucinating, do not know their own names, and are visibly dehydrated with no assessment for dementia, no documentation of the presence or absence of a mental disorder, and no mention to the family of the resident's behavior. As a health professional dealing with a population with a high prevalence of dementia, it is your responsibility to recognize disorientation, psychosis, and memory loss and to document these conditions appropriately. If you are unsure of your or your staff's clinical skills in this area, invest in adequate training to correct any deficiencies.

Step Three
Make unilateral decisions without fully consulting with the resident or his/her family.

For example, we have been asked to see residents who were "difficult to manage" or "violent" and told that if we couldn't intervene quickly, the resident would be evicted or moved to a lower level of care. In such cases, it is not uncommon that the family and resident have no idea that there has been any talk of the resident's leaving the facility.

Planning a life-changing move without warning the resident or the resident's family-particularly if your marketing materials promise care through the end of life-is devastating and will almost surely provoke rage. Angry residents or families who are scared and sense that you want to be rid of them will likely see legal action as their only recourse. Aggressive behavior in a resident is difficult for everyone, but it is a common behavioral problem associated with dementia. Families are understandably frightened, ashamed, and upset to hear that their loved one is aggressive. Careful consideration of the family's feelings, inclusion of the family in discussions of the problems, and collaboration with the family to find solutions will leave little room for allegations of negligence.

Step Four
Ignore consultants' recommendations, explaining that you just don't have enough staff to implement them.