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Differentiate Yourself from Hospice and Other Care Providers | |
We defended a nursing home against a lawsuit where our client provided great care and adequate documentation but still settled for a lot of money because hospice did not do documentation properly.
A woman in her 50's was admitted to nursing home client with severely compromised circulation. Within a few months everyone except the resident herself, acknowledged that her right leg needed to be amputated. The resident insisted that "I came into this world with two legs and I'm gonna leave this world with two legs". Her daughter was in a terrible conflict. Her choices were very grim: either follow her mother's demand which meant certain death OR transfer her mother, against her wishes, to the hospital for an amputation which might save her mother's life but probably with great suffering. She decided to follow her mother's wishes. Hospice was called in to provide care for her mother. The right leg was gangrenous. A small sacral ulcer developed. No one was surprised considering the resident's terrible condition. Our expert witness, believed the ulcer was a Kennedy ulcer. Unfortunately, hospice did not document the development of the ulcer. Just as her mother was about to die, the daughter changed her mind and rushed her mother to the hospital where the leg was amputated. Miraculously the mother survived but suffered for months as the sacral ulcer developed into a stage 4 and was finally addressed with a skin flap. Our expert nurse witness was right - it turned out to be a Kennedy ulcer.
The family sued our client, the nursing home. They did not sue the hospice. We ultimately settled for many thousands of dollars. We told the insurance company the same thing we are sure you are thinking right now - that the nursing home did not do anything wrong. Unfortunately, the family could not differentiate between the care provided by the nursing home and the hospice. There was no clear bright line between the two organizations. The family claimed that the ulcer developed before the hospice was called in. They were wrong but the nursing home could not disprove their claim.
Our point with this story is that you are ultimately responsible for the care of your residents. If you call in hospice - you are still responsible. If you call in a wound care company - you are still responsible. If you call in an incontinence company - you are still responsible. If you call in a therapy company - you are still responsible. You must make sure that your residents and their families know that they are dealing with different companies and you must supervise the documentation and the care that these contractors provide. In our nursing homes, there's no such thing as handing off responsibility to another party. |
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Nursing Homes Can Be Sued for
Acts of God | |
We defended a nursing home against a lawsuit by the wife of a resident. Both the husband and wife were aging. The wife visited every night. She was very devoted to her husband. She often told the nursing home how much she appreciated the wonderful care. Every night as she left the nursing home she went out the side exit, walked along a wide, recently repaved, well-lit sidewalk to the parking lot where she had parked her car. One night, as she was walking on the sidewalk to her car, she fell and fractured her hip. As she was rescued by the nursing home, she told the social worker and two nurses: "I was walking on the sidewalk and a gust of wind blew me off the sidewalk". She hired a lawyer who sued the nursing home for negligence.
We confirmed during her deposition - that's where we asked her questions about her injuries - what had happened. She said over and over again - "a gust of wind blew me off the sidewalk". We found out during the deposition that she had a pre-existing weakness from a hip fix months earlier.
We filed a motion for summary judgment - that's where we presented to the court that the facts were not in dispute so the court should apply the law then instead of waiting until trial. We won. The judge agreed that the nursing home had done everything it was supposed to do - provide a safe sidewalk free from cracks, well-lit and wide enough for an aged person to walk.
Our point within this story is that we can do everything right and we can still be sued. Unfortunately, lawsuits by residents and their families appear to be the cost of doing business and in our case the cost of providing care. Nevertheless, we must continue to minimize what we do that contributes to these lawsuits.
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| Mission Statement - Reduce Your Risk Now | |
Our firm is dedicated to helping health care providers, in particular long term care facilities and their insurers, reduce costs by minimizing the risk of adverse events
We do this by being proactive (pre-litigation strategies). This includes training and education of employees, review of policies and procedures, implementing communication channels, getting feedback through interviews and focus groups, and continuous monitoring and auditing. Vital to employee education is documentation training and effective communication training.
If an adverse event occurs, our response is promptly reactive (pre-litigation strategies). Mandatory, non-binding mediation is utilized whenever possible. Our goal is to quickly resolve disputes before they escalate and require resolution through the judicial system. To avoid a repeat occurrence, we continue staff training and education with a focus on prevention, as well as review and revise policies and procedures for greater effectiveness.
If a lawsuit is filed, the risk that existed has been realized (litigation strategies). Defense analysis, expert witnesses, focus groups, and mock trials are all part of litigation defense. Finally, implement post-litigation risk management strategies to remedy the situation.
A comprehensive Compliance Program (also known as a Risk Management Program) focuses on early intervention through training, communication, and policy review. Monitoring and auditing are key elements to reduce medical liability exposure and improve patient safety.
Our firm offers numerous specialty risk management programs including a pharmacy risk management program which involves the review of skilled nursing facility pharmacy contracts and monthly pharmacy bills, assistance in renegotiating pharmacy contracts with an effort to obtain favorable pricing, evaluate Medicaid pending claims for credit after residents become Medicaid approved and/or evaluate pricing for Medicaid pass thru drugs.
David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University. He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.
The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.
For more information, please contact us:
Telephone (609) 688-0055
Fax (609) 688-1199
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