Ask the legal expert: legal protection from families who don't heed medical warnings

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
What's the best way to protect ourselves from possible litigation when a family refuses to heed our warnings about a family member whose mental status is declining rapidly and could become a danger to himself or others?

Probably the best way for a facility to protect itself is to terminate the residency. But outside of terminating the contract or involuntarily transferring or discharging a resident in compliance with state and federal laws and carefully documenting the risks associated with the resident's condition, a facility could consider a negotiated risk agreement. Though most states have no provisions related to negotiated risk agreements in either statute or administrative rule, facilities must still check with their state laws to determine whether they impose any limitations on such agreements.

A negotiated risk agreement is appropriate where a resident's preference or decision places herself or others at risk, or is likely to lead to adverse consequences. A negotiated risk process allows residents to determine and choose what assistance the facility will provide, how often and when. The facility expresses the risk, but final decision making rests with the resident.

Only a few experts, however, believe that negotiated risk agreements can limit provider liability if negligence is involved.  Nevertheless, such agreements are seen as a valuable liability reduction tool because they involve family members in the negotiated risk process.

Where a resident and/or his family members refuse to enter into such an agreement or the resident poses an imminent risk of death of serious physical harm to himself or others, the facility should then seriously consider terminating the residency.
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