Ask the legal expert: What's the best way to respond to alleged deficiencies?

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP

Q: State surveyors issued an erroneous report, alleging deficiencies that we're contesting. But family members are already using it to threaten legal action against us. How can we respond?

A: Healthcare facilities regularly face this issue. The fact is: Deficiencies that surveyors write are only allegations. The allegations may provide a resident suing a facility a road map for deciding what information to seek from the facility in litigation, but the allegations are entitled to no more weight than any other allegation.

A plaintiff still must prove those allegations in the course of the litigation in order for the facility to face liability.

Additionally, in a personal injury lawsuit, the plaintiff must prove damages. If the allegation is poor record-keeping, proving damages is likely remote.

The effect of the deficiencies might differ if a licensure or certification agency issues a final order upholding the deficiencies. In that instance, it will depend on a particular state's law whether the finding will have any impact on subsequent litigation, such as a personal injury lawsuit. 

If a family is threatening to take legal action against the facility, one school of thought says it is best for facility personnel to refrain from discussing with the family anything about the allegations; someone's misstatement might come back against the facility.

Another school of thought says that facility personnel should continue to express concern about the family member's complaints and perhaps explore opportunities to resolve the matter in question.

Ultimately, How a facility proceeds is a judgment call, which is best made after notifying your insurance carrier and counsel.
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