Contact Information Patricia Mullins-Freeman Foland, Wickens, Eisfelder, Roper & Hofer, P.C. 911 Main Street, Suite 3000 Kansas City, Mo 64110 firstname.lastname@example.org 816-460-2833
The Perils MALPRACTICE COMMON LAW OBRA State Laws EMPLOYMENT ACTIONS FALSE CLAIMS ACT
2/2004, $5,500,000 VERDICT Arkansas woman dies of fatal septic shock after nursing home staff fails to alert treating physician of changes in bowel condition. Punitive damages awarded for failure of nurses to call physician, even though husband of deceased requested call. Nurse testified, “we cannot call the doctor every time someone gets a bellyache”.
10/2004, $4,500,000 VERDICT Malicious failure to treat injury. Continuing failure of nursing home staff to appropriately care for elderly man considered intentional act for which there was no insurance coverage.
New York 2009 Hidden camera set up by family after management at the Fillmore Convalescent Center allegedly ignored their complaints that the elderly woman had unexplained bruises Footage shows nursing home worker Monica Garcia pulling Arellano by the hair, slapping her, bending her wrists, fingers, and neck, and violently handling her while she is seated in a shower chair. $7.75 million to the family
New Mexico 7/2008. Resident in nursing home for rehabilitation. She allegedly died in a puddle of blood, vomit and dirty sheets. The staff allegedly scrambled to clean up the scene of her death disposing of any evidence of how resident really died. The facility allegedly altered medical records to make it appear that resident was well cared for over the course of her stay. Facility insisted that understaffing was not an issue in resident’s case. The jury awarded $54,000,000 for resident’s pain and suffering.
OBRA Created a set of minimum national standards of care and rights for people living in certified nursing facilities. Arkansas Code: 20-10-1001 et seq.
COMMON LAW NEGLIGENCE Duty to resident Breach of duty
DUTY = STANDARD OF CARE THAT DEGREE OF SKILL AND LEARNING ORDINARILY EXERCISED UNDER THE SAME OR SIMILAR CIRCUMSTANCES BY MEMBERS OF THE PROFESSION
BREACH OF DUTY = FAILING TO FOLLOW THE STANDARD OF CARE Skin Breakdown Falls Failure to Respond to Change in Condition Physical and Sexual Abuse Dehydration/Malnutrition
Types of Claims Decubitus Ulcers Failure to assess resident for risk of skin breakdown Failure to provide intervention to address risk of skin breakdown Failure to identify and treat skin breakdown Failure to notify physician of skin breakdown or progression of wounds
Falls – Failure to assess risk of suffering a fall – Failure to provide intervention to address risk of falling
Failure to Respond to Change in Condition Failure to assess resident for change in condition Failure to monitor resident after identifying change in condition Failure to provide interventions
Physical and Sexual Abuse Resident on Resident Staff on Resident Failure to provide protection and oversight Failure to take action after receiving notice of dangerous propensity Failure to adequately respond to event
Dehydration/ Malnutrition Failure to address risk Failure to provide interventions Failure to monitor intake/output
EASY WAYS TO START DEFENDING YOUR LAWSUIT BEFORE YOU GET SUED START WITH THE ASSUMPTION THAT YOU WILL GET SUED COMMON SENSE EDUCATION POLICIES DOCUMENTATION TRAINING COMPLIANCE PROGRAM EFFECTIVE INVESTIGATION
Common Sense Ways to Avoid Claims 1. Staff must not be seen idle or participating in non-work related activities. 2. Communication is vital 3. Avoid staff turnover 4. Show empathy 5. Be kind
EDUCATION FROM DAY ONE – THE RESIDENT AND THE RESIDENT’S FAMILY MUST BE EDUCATED ABOUT LONG-TERM CARE AND WHAT TO EXPECT FROM YOUR FACILITY! ADMISSIONS AGREEMENT IS YOUR NUMBER ONE TOOL Mission Statement
WHAT IS IN THE ADMISSION AGREEMENT? IS YOUR ADMISSION AGREEMENT PROTECTING YOU? DISCLAIMER: IT IS IMPORTANT THAT YOU ARE AWARE THAT WE WILL STRIVE TO ALWAYS PROVIDE QUALITY CARE TO THE RESIDENT. PLEASE UNDERSTAND THAT WE WILL NOT BE PROVIDING AROUND THE CLOCK ONE-ON-ONE CARE. RATHER, THERE WILL BE NURSING SERVICES AVAILABLE TO THE RESIDENT 24 HOURS A DAY.
MISSION STATEMENT These nursing policies have been drafted and implemented in an effort to assist the nursing staff in providing exceptional care to our residents. The policies are not intended to create the standard of care. These policies are not intended to replace nursing judgment, but should be used in conjunction with nursing judgment.
SHIFT RESPONSIBILITY SOME THINGS A NURSE CANNOT DECIDE: MAKE THE DOCTOR DO IT! MAKE THE FAMILY TAKE ON THE RESPONSIBILITY Off-grounds privileges; Driving privileges Searches Resident activities Resident socializing Resident on grounds, but outside (no supervision)
ADMISSION AGREEMENT: I HEREBY ACKNOWLEDGE FALLS HAPPEN PRESSURE SORES HAPPEN RESIDENT WILL BE BATHED 2X A WEEK RESIDENT WILL BE CONFUSED ABOUT HER ENVIRONMENT RESIDENT WILL NOT LIKELY LEAVE THE FACILITY BETTER THAN SHE ARRIVED
RESIDENT FAMILY OBLIGATIONS Special Food Smoking Privileges Complaints Pets End of Life Planning
STANDARD OF CARE IS NOT: 1. BEST CARE 2. POLICIES
WHEN ITS EXCEPTIONAL, INCLUDE: ALL OF YOUR ASSESSMENTS EVALUATIONS OF HOW TREATMENTS OR INTERVENTIONS WORKED RESIDENT NON-COMPLIANCE!!!!! DISCUSSION WITH M.D. ESPECIALLY WITH REGARD TO PATIENT SYMPTOMS DOCUMENT ALL WITNESSES TO CARE OR CONVERSATIONS! ALL RESIDENT REFUSALS
NOTHING NEGATIVE PLEASE NEVER ENTER INTO THE RECORD NEGATIVE OPINIONS ABOUT THE RESIDENT (E.G. ODOR, WEIGHT, PERSONALITY) PLAINTIFF’S COUNSEL WILL SAY YOU GAVE POOR CARE BECAUSE YOU DID NOT LIKE HIM. ALWAYS DOCUMENT NON-COMPLIANCE
TRAINING FOR DEFENSE LEGAL TRAINING KNOW WHAT THE STANDARD OF CARE IS AND GROUNDS FOR SUIT DEFENSIVE DOCUMENTATION POLICIES FORMS COMPLIANCE PROGRAMS EEOC OBRA/NURSE PRACTICES ACT
CCP’S ALLOW INSTITUTION TO: Identify weaknesses in internal system Demonstrate hospital’s commitment to honest and responsible corporate conduct Provide more accurate review of employee fraud and abuse Identify and prevent criminal unethical conduct
Elements of Compliance Plans 1. Compliance standards 2. High level oversight 3. Employee screening 4. Education 5. Monitoring systems 6. Discipline 7. Responses
Functions: Education of staff Policy review Grievance review Case Review Discussion of clinical and organizational ethics
Members: Doctors Administrators Social Services Lawyer Business Office Manager Resident Representatives Director of Nursing
Response to claims and incidents: Investigation
NEVER FAIL TO INVESTIGATE If you know about significant misconduct or a dangerous condition and do not do anything about it – you are exposing your company to tremendous legal risk. Any harm that comes to your employees or residents as result of a known dangerous condition will result in liability. Sometimes – just investigating a potential bad outcome saves you from liability
WHAT TO DO WHEN YOU SUSPECT A CLAIM OR LAWSUIT HOW TO CONDUCT A SUCCESSFUL WORKPLACE INVESTIGATION WHAT MISTAKES IN INVESTIGATION TO AVOID
WHEN YOU SUSPECT A RESIDENT/FAMILY CLAIM INVESTIGATIVE PROTOCOLS SHOULD BE CLEARLY STATED AND FOLLOWED
DO HAVE A POLICY IN PLACE REGARDING A RESPONSE TO A CLAIM OR LAWSUIT DO CONTACT THE COMPANY RISK MANAGER OR DEFENSE ATTORNEY IMMEDIATELY
DO GATHER AND SAFEGUARD ALL DOCUMENTS AND RECORDS THAT PERTAIN TO THE RESIDENT ADMISSIONS AGREEMENT ASSESSMENTS PHYSICIANS REPORT / ORDERS ASSISTED LIVING SERVICE NOTES OR FLOW SHEETS SERVICE NOTES OF ANY KIND COMMUNICATION LOG ENTRIES MEDICATION FLOW SHEETS INCIDENT REPORTS AND INVESTIGATION NOTES
DO PLACE A COPY OF ALL RECORD REQUESTS IN THE RESIDENT’S ADMINISTRATION FILE DO IDENTIFY ALL STAFF WHO HAVE KNOWLEDGE OF THE ALLEGED INCIDENT DO MARK ALL INCIDENT REPORTS AND INVESTIGATION NOTES THAT ARE NOT SUBMITTED TO LICENSING AS “CONFIDENTIAL”
DO NOTE THE CONTACT INFORMATION FOR THE AMBULANCE SERVICE AND CONFIRM THE NAME OF THE RECEIVING HOSPITAL DO ACKNOWLEDGE RECEIPT OF A CLAIM OR LAWSUIT DO DIRECT ANY INVESTIGATORS, PLAINTIFF ATTORNEYS OR “SNOOPING” FAMILY MEMBERS OF THE SUBJECT RESIDENT TO THE COMPANY RISK MANAGER OR DEFENSE ATTORNEY DO BE RESPONSIVE, COMPASSIONATE AND “REASONABLY” ACCOMODATING WITH THE RESIDENT AND THEIR FAMILY
DO NOT CONCEDE ANY WRONG DOING DO NOT PRODUCE ANY PORTION OF THE RESIDENT’S FILE OR CHART WITHOUT FIRST CONFIRMING THAT IT IS “COMPLETE” DO NOT ASK FACILITY STAFF MEMBERS TO CREATE THEIR OWN WRITTEN STATEMENTS
DO NOT ALLOW THE RESIDENT’S ATTORNEY OR INVESTIGATOR TO INTERVIEW ANY FACILITY STAFF MEMBER WITHOUT THE COMPANY RISK MANAGER OR DEFENSE ATTORNEY BEING PRESENT DO NOT PROVIDE THE RESIDENT’S FAMILY MEMBER, ATTORNEY OR INVESTIGATOR WITH A COPY OF THE INCIDENT REPORT (UNLESS IT IS THE SAME REPORT THAT WAS SUBMITTED TO LICENSING) OR ANY INVESTIGATION NOTES OR WITNESS STATEMENTS DO NOT OFFER TO PAY FOR ANY OF THE RESIDENT’S MEDICAL EXPENSES UNLESS THEY ARE WILLING TO SIGN A FULL RELEASE DO NOT USE WORDS LIKE PUSHED/HIT OR TRIPPED/SLIPPED. INSTEAD, USE WORDS LIKE BUMPED/CONTACT OR COLLAPSED/FOUND ON FLOOR. DO NOT APOLOGIZE FOR THE “ACCIDENT”. INSTEAD BE SYMPATHETIC ABOUT THE INJURY.
Should you INvestigate?? When you learn of a problem or a complaint of workplace wrongdoing, you must first decide whether to investigate. There are some situations when an investigation won't be necessary. For example, if everyone involved in the problem agrees about what happened, you usually won't need to do any fact-finding – If the problem appears to be minor -- for example, one employee accuses another of playing the radio too loudly in a common workspace -- you can simply talk to the employees involved and clear things up quickly.
If you cannot decide whether to investigate – you should If the problem is more serious than it seemed, failing to investigate can lead to legal trouble. And sometimes, you won't know how widespread or substantial a problem is until you do a little poking around.
A good reason to always investigate is a good investigation can save you from a lawsuit!! Sometimes the best defense to an employment complaint is taking action.
The False Claims Act Prohibits knowingly presenting a false or fraudulent claim using a false record or statement to get a claim paid avoiding an obligation to pay back the government (“reverse false claims”) Penalty = $5,500 to $11,000 per claim plus treble damages
FCA (cont’d) What is a “claim”? Each UB92 or HCFA-1500 form? Each line item on the form? Submission to the fiscal intermediary = “to the government” Applies to the entity and the individuals involved
FCA (cont’d) Services “not provided as claimed” Not provided at all Wrong provider is indicated Wrong time and location Wrong frequency, intensity, duration Incorrect symptoms and diagnosis (CPT, for example) Wrong supplies indicated
FCA (cont’d) “Knew or should have known” actual knowledge of falsity deliberate ignorance of falsity reckless disregard of falsity Corporate compliance program can dispel “deliberate ignorance” or “reckless disregard” allegations
FCA (cont’d) Qui tam provisions Private “whistle-blowers” Filed secretly with U.S. Attorney or DOJ Plaintiff can receive 15–30% of amount recovered, plus atty. fees, if successful
WHAT TO EXPECT FROM YOUR ATTORNEY COMMUNICATION ADVOCACY AVAILABILITY