Ask the legal expert: What is legal protocol for resident falls?
Attorney John Durso, Ungaretti & Harris LLP
A: In these cases, your first action should be to notify your insurance carrier and legal counsel and instruct them to conduct an investigation into the incident. All documents created during the course of the investigation should be prepared by, or under the supervision of, legal counsel in order to maintain privilege over the documents.
If you choose to utilize third-party investigators, such investigators should be hired by legal counsel. If hired by legal counsel, such investigators may be considered an agent of legal counsel and documents created by the investigator might qualify as privileged documents. You also should notify regulatory legal counsel, as the potential plaintiff may file a complaint with the state agency, triggering survey and certification issues.
Prospectively, a facility should objectively document the resident's behavior and limitations in the medical record and implement an appropriate care plan. If a court investigates an incident of resident injury, the first thing that will be examined is the medical record for notice or knowledge of a resident's behavior or limitations.
The inquiry would then turn to whether an appropriate care plan was created and implemented. In the context of your example, the investigation may turn to whether appropriate measures were taken to prevent the resident from ambulating without help (i.e., why the facility allowed a walker in resident's room or whether bed rails were utilized).
You must also calculate into the cost side the management and staff time necessary to mount an adequate defense.
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