Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 12, Issue 11                             ADVERTISEMENT                                                 NOVEMBER 2011

In This Issue
Is Your Facility's Violence Prevention Program In Place?
Lawsuits Settled to Avoid Legal Fees and Possible Punitive Damages Even if There are No Pain and Suffering Damages or Medical Expenses

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David Barmak, Esq. 


Allison Whitehead, Esq. 


Brandon Goldberg, Esq.


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Is Your Facility's Violence Prevention Program In Place?


December 6, 2011 is the Deadline for Nursing Homes to Have a  Violence Prevention Program

The New Jersey Department of Health and Senior Services, Office of Certificate of Need and Healthcare Licensure has adopted new rules to implement the Violence Prevention in Health Care Act which was signed into law in January, 2008.


These new rules are as follows:


By December 6, 2011 facilities are required to have their violence prevention program in place.  This essentially entails naming a violence prevention committee comprised of members responsible for tasks as prescribed in 8:43E-11.4. These committees are required to meet at least quarterly.


By March 6, 2012 each violence prevention committee is required to develop and maintain a detailed, written violence prevention plan that identifies workplace risks and provides specific methods to address them.  See 8:43E-11.6 for details on what is required to be incorporated into these plans.


If ownership operates more than one nursing home the rules provide that "the violence prevention program and committee may be operated at the system level, provided that 1) Committee membership shall include at least one health care worker from each facility that provides direct care to patients or residents; 2) The committee shall develop a violence prevention plan for each covered health care facility; and 3) Data related to violence prevention shall remain distinctly identifiable for each covered facility."


These rules impose other requirements upon facilities and their violence prevention committees, such as completion of an annual violence risk assessment; conducting violence prevention training; incident response, investigation and reporting; recordkeeping and post incident response. It is imperative that all nursing homes review the new Violence Prevention in Health Care Facilities rules in their entirety to be sure that they remain in compliance.

Lawsuits Settled to Avoid Legal Fees and Possible Punitive Damages Even if There are No Pain and Suffering Damages or

Medical Expenses

A female resident is 83 years old. She suffers from organic brain syndrome and dementia with impairment in her cognition and judgment.  She resides in our client's nursing home on a locked unit and is able to walk independently.  She often wanders into other residents' rooms.  At approximately 3:05 in the afternoon, she wanders into a room inhabited by two male residents well known to be sexual predators. They were supposed to receive constant 1:1 supervision. At that time on that particular day the two male residents were left unattended. An aide left her shift at 3 instead of waiting for her replacement aide who had stopped for donuts. 15 minutes later, the aide who had stopped for donuts walked into the room and found one of the male residents with his pants down and lying on top of the female resident. The female resident's diaper was unfastened on one side.  The other male resident was standing by the bed and adjusting his underwear. The female resident was immediately sent to the hospital for a rape assessment which proved inconclusive. The female resident could not remember a thing and did not express any upset over the incident.


The nursing home social worker sent the two male residents to a hospital outreach program for behavioral evaluation and assessment. On the "outreach request" form she wrote:  "Reason for referral:  sexually aggressive with other residents, attempted sexual assault on another resident."


The problem with the outreach request form was that the statements were conclusory. The statements might have been true but instead of writing "attempted sexual assault" she should have given just the facts which were:  "Resident found on top of another resident."  "Attempted sexual assault" implies intention and was unfortunately very supportive during a trial that our firm was involved with, of a lawyer's effort to enflame the jury and persuade the insurance carrier to settle the lawsuit. 


Now what are the damages? New Jersey law requires that there be some damage to recover. In this case, the resident did not express any memory or upset and the hospital didn't find any evidence of sexual assault.


The documentation by the social worker, the horrific image conjured up by a wandering resident being accosted by two sexual predators without the protection or intervention of an assigned aide because of a mere donut run was enough to require settling this lawsuit to avoid the possibility of  paying the resident's legal fees and punitive damages.


The point of this story is that lawsuits settle to avoid possibly paying resident's legal fees and to avoid possible punitive damages even if there are no pain and suffering damages or medical expenses. 

Law Offices Of David S. Barmak, LLC
Our firm is dedicated to helping health care providers, in particular skilled nursing facilities, manage risk through a comprehensive compliance program that focuses on early intervention through on-site training, communication, policy & procedure review, monitoring and consultation. The program includes on site training in the areas of, but not limited to, fraud & abuse, HIPAA privacy and data security, employment, emergency preparedness, workplace violence, clinical documentation, sexual harassmentand social networking.

The firm's compliance team includes experienced compliance attorneys, clinical nurses, physical therapy and pharmacy consultants who are available to assist clients with pre and post Department of Health (DOH) survey procedures, respond to DOH questions, prepare for re-inspections, minimize risks for deficiencies, offer support to Directors of Nursing and correct care plans, incident reports and therapy notes, review Medicare billing, audit and review PPS/Medicare/Medicaid insurance documentation.


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