Order in the court — and in providers' 'legal' learning session

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James M. Berklan, McKnight's Editor
James M. Berklan, McKnight's Editor

You haven't truly lived until you've wandered into a convention lecture room with low expectations and encountered a man in a white curly wig, conducting a mock trial that sends both shivers and titters through a room. I learned that in a delightful way Tuesday afternoon.

That's when I ambled into a LeadingAge annual conference session simply titled “Navigating today's legal system.” What ensued at the Dallas Convention Center was good-natured needling mixed with brusque cross-examination over long-term care provider care practices.

As the simulated courtroom drama unfolded, audience members gave their smartphones and doodling a break, a flattering sign if ever there were one. Actual officers of the Hebrew Home for the Aged at Riverdale and partners at the law firm Wilson Elser occupied "courtroom" chairs. They gave a realistic peek into the verbal sparring that occurs in a trial when a provider is sued by the family of a deceased resident.

Even the best of caregivers can go down if they are not properly prepared, or the medical records they've kept are weak or incomplete.

“Preparation of a witness is key,” Wilson Elser attorney Lori Semlies told McKnight's after the trial exercise. As a mock plaintiff attorney, she tied “nurses” from the “Generic Nursing & Rehabilitation” facility into knots on the witness stand.

“We spend more time with witness prep than anything,” noted Semlies, again speaking as a successful defense attorney.

Even though her foils were played by a pair of Hebrew Home veteran vice presidents, Mojdeh Rutigliano and Ann Marie Levine, Semlies easily showed how documentation that is not totally accurate, complete or consistent could be used against an unprepared caregiver.

The Wilson Elser crew first began putting on mock trial scenarios at facility in-services. Then, they were asked to do one for the Hebrew Home board, which eventually led to another mock trial at the LeadingAge New York annual meeting in May and, ultimately, Tuesday's well-attended event.

A “Scared Straight” lecture to staff members about having to keep consistently great records can be helpful.

“They don't appreciate it until they see this [mock trial],” Semlies explained. “Then the CNAs cluster together and RNs get together and they start asking questions.”

Semlies advises nurses and aides not sign off on unconfirmed or incomplete written reports, especially if a signature is asked just as they're rushing out the door for the day. Don't sign, wait a day to complete any reports, or stick around and check thoroughly before signing off, she advised.

Other strategies that came to the fore to thwart potential lawsuits:

• Educate staff members thoroughly on policies and procedures.

• Deal in customer service rather than patient approval

• Say, “We are sorry” — when applicable. In other words, be open to it but don't do it without a good reason.

• Use good QIS software

• Talk to your front line staff often. They notice the risks first, sometimes 72 hours before others will.

• Maintain continuous communication among staff members

Sounds simple, right? Wrong. Semlies said they used real samples of poor record-keeping to build the mock trial's script, and could easily find 1,000 such examples.

It's also important for providers to remember that most insurance carriers will have legal services available. What's more, they're often free of charge, said a de-wigged “judge” David Weinstein, executive vice president and COO of Hebrew Home.

“Bring counsel in long before there's a chance of a lawsuit,” he advises.

And if you're lucky enough to get them to do it, have them put on a thought-provoking mock trial. With or without a white, curly wig for the judge.


James M. Berklan is Editor at McKnight's. Follow him on Twitter @LTCEditorsDesk.

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McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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