Navigating the legal landscape in long-term care

Long-term care owners and operators must constantly navigate a minefield of potential lawsuits. Vincent Marsella has seen it all. As an attorney with Lewis Brisbois Bisgaard & Smith LLP, Marsella defends LTC providers against elder abuse, neglect and wrongful death claims.

In a compelling session presented at the recent American College of Health Care Administrators Convocation and Exposition in New Orleans, Marsella related jaw-dropping stories of cases he’s defended involving the gamut of criminal behavior. His caseload is likely to grow with the swelling ranks of elderly entering long-term care and rising acuity levels.

His blunt counsel to providers: “A lot of ALs/ILs are taking residents who shouldn’t be there—with wounds, subject to falls and with high acuity. If you have doubt, don’t take them in. Know what your limits are. Don’t try to do what you can’t do, to fill a bed. It’s not worth it.”

Some of the most common criminal violations in long-term care include battery and sexual assault, theft, fraudulent medical records, Medicare fraud and staff stealing residents’ medications. Corporations and owners are difficult to convict without knowledge or ratification of a criminal act, said Marsella, and convictions of owners require evidence that senior management knew of a serious problem and ignored it. But it can happen.

So who is most frequently prosecuted? CNAs, said Marsella. CNAs provide the most hands-on care. Some patients are violent or aggressive and CNAs react. And, CNAs are often prosecuted for concealing omissions.

Marsella said a good defense when a crime occurs involves acting quickly to find helpful facts; identifying helpful witnesses, facts and medical issues; organizing documents; and interviewing witnesses. It involves cooperating with officials and reporting crimes to all relevant parties—your lawyer being the first call you make, of course. And caution: “Be careful of emails,” said Marsella. “All are discoverable. Copy your lawyer” on any emails that detail or discuss an alleged crime.

And importantly, reach out to the resident and family in any alleged case of facility abuse or negligence. “Let them know you care about their loved one and convey regrets (not apologies),” said Marsella. “Show empathy and have a good bedside manner.”

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