Top 10 ways to avoid litigation
Nursing homes and assisted living facilities have been targeted by plaintiff's attorneys, who advertise heavily to solicit plaintiffs for malpractice suits. Often, the plaintiffs are unhappy family members of residents who have experienced falls, pressure wounds, unexplained injuries or death at nursing homes. In our practice defending long-term care facilities, we have identified some relatively simple and straightforward actions that nursing homes can take to avoid litigation.
These are our top 10 recommendations:
10. Conduct Background Checks. State and federal regulations require nursing homes to conduct background checks on their caregivers. This practice helps long-term care facilities weed out bad employees. Consider conducting background checks on potential residents as well. Having a registered sex offender as a resident will provide a plaintiff's attorney with compelling ammunition if there is a case of resident-on-resident abuse.
9. Go the Extra Mile After Discharge. It is important to show residents and their families that you care about them both during a person's residency and after. Maintaining a positive relationship with families following a resident's discharge is an effective means for avoiding litigation later. If a resident passes away, have representatives from the facility attend visitation or the funeral and send a card or memorial to the family. Additionally, consider inviting the family members of former residents to the facility for an annual memorial service to honor the individuals who resided at the facility in the past.
8. Train Your Staff. Training your staff is not only required to satisfy federal and state regulations, but it can also be vital to avoid litigation. Often in litigation, family members report instances where they were told by CNAs and nurses that the facility was "under staffed." Other times, family members report complaints from staff about facility management, problems with equipment and the absence of supplies. Staff members should be trained on appropriate communication and interaction with residents and their families, remembering that customer satisfaction is crucial to the success of a facility.
7. Set Realistic Expectations. Frequently, family members who sue nursing homes do not understand the nature of their loved one's medical condition. Setting realistic expectations about a resident's outcome can help family members understand the disease process and decrease the likelihood of a lawsuit if an inevitable medical complication occurs. Maintain accurate marketing materials that do not overstate your facility's services; communicate with family members regularly about the level of care provided to their loved ones; and look for educational opportunities about common issues such as dehydration, malnutrition, and pressure wounds.
6. Use an Arbitration Agreement. Talk to your counsel to determine if your facility is in a jurisdiction that will enforce arbitration agreements. If so, implement an arbitration agreement. More often than not, having a dispute decided by an educated arbitrator is more desirable than a jury.
5. Communicate with the Resident and Family. Families file suit when they do not understand that a resident's condition is deteriorating; the reason a resident's condition is deteriorating, and the possible outcomes of a resident's condition. Talk to your medical director and the physicians in your facility to ensure they communicate regularly with residents and their families. We recommend using written communication tools such as a quarterly questionnaire that is completed by families, asking questions like, "Are you satisfied with the care delivered to your loved one?" Such communications can help open a dialogue between the facility and family members (and they can potentially rebut a plaintiff's complaints at trial).
4. If You Have a Policy, Follow It. Facilities often have written policies and procedures that are not implemented in practice. Such conduct provides fodder for plaintiff's lawyers who can obtain admissions from caregivers that specific policies adopted by a facility were "violated." Review your policies and procedures. If they include procedures that your facility does not follow, either change your practice or update your policies to reflect your facility's actual practices.
3. Document Appropriately. Caregivers are humans. They work hard sometimes under stressful circumstances, and they may get frustrated with residents. However, train your staff to ensure that their frustrations are voiced in the appropriate internal and confidential forums rather than expressed in the residents' charts.
2. Document Accurately. Inaccurate documentation alone can make a plaintiff's case. Documenting on a resident when she is out of the facility can make a jury question the credibility of the staff that cared for a resident. Likewise, failing to document the administration of treatments or medications enables a plaintiff's lawyer to argue that, "it wasn't done if it wasn't charted." Regular chart audits and quality assurance measures to ensure accurate documentation can effectively strip a plaintiff's lawyer of such arguments.
1. Provide Quality Care. Above all else, provide quality nursing care. Hire and retain staff who genuinely care for the residents at your facility and work diligently to avoid preventable accidents and incidents.Davis Frye is a shareholder in the Jackson, MS, office of Baker Donelson. He specializes in litigation, with an emphasis on the defense of health care providers in matters involving medical negligence, employment law and premises liability. He also has extensive experience with nursing home litigation. He can be reached at firstname.lastname@example.org.
Bradley W. Smith, shareholder in Baker Donelson's Jackson, MS, office, is a member of the Firm's Product Liability & Mass Tort Practice Group. He concentrates his practice in litigation with significant experience in professional liability for physicians, hospitals and long-term care facilities. He can be reached at email@example.com.