Guest Columns

The gray area of liability

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Eugene Solomon
Eugene Solomon

An industry debate was revived recently on the heels of a tragic incident at an independent living community. When a corporate policy prevented an employee from administering CPR on a resident that was in duress, the story made national headlines. While consumers were questioning the policy, assisted living professionals were questioning other “what ifs.”  What would have happened if the nurse was a companion service professional? Or a companion service professional jumped in to help?

Assisted living communities welcome companion service companies with open arms into their properties. And they should. But with it and often unspoken, comes risk and liability. Risk is inherent in the industry. Assisted living communities do an excellent job of balancing good, quality care with risk prevention. It's what the industry was built upon. But companion services and the relationship between the community and the company is not always articulated and formalized.

Policies and procedures, especially related to emergency response, are not discussed and agreed to with third-parties and visitors. This creates a gray area of liability.

How do communities manage this and move from the gray to black and white? Establish protocol, rules and a partnership agreement upfront.

  1. Communicate and demonstrate emergency situation policies. Be clear. Most organizations have safety meetings and staff protocol for medical care and other resident related activity. When a provider comes on site, have a tear sheet of community policies presented to them by the front desk. (for example, dogs are not permitted, emergency protocol, etc.) Companion service professionals are not employees but will be interacting with employees and other residents. Make sure there are rules in place to be followed.  And enforce them. A violation of the rules should be addressed and cataloged. 
  2. Require all outside vendors to provide a certificate of insurance before they visit with a resident. No exceptions. It's a simple task for an insurance broker or the companion services provider to provide a certificate of insurance. Retain this document in the resident's file. If a circumstance gives rise to a claim, contact the insurance company listed on the form for help with attorney fees or indemnity. Insurance company contact information, policy number and coverage limits are accessed in one simple form. More effectively, you may want the vendor to name you, the community, as Additional Insured on this policy.
  3. Ensure vendors are licensed, insured and bonded. Ask for documentation. If a state requires a certification, get a copy. In most states, you can verify the information on a state affiliated website to ensure up-to-date information.

Overlooking any of these elements could result in unwelcome litigation for the community or worse, unintended harm to residents. The good news is companies can be proactive and safeguard themselves.

Eugene Solomon is a senior partner, A.G.E. Insurance.

Guest Columns

Guest columns are written by long-term care industry experts, ranging from academics and thought leaders to administrators and CEOs.