Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 12 ADVERTISEMENT December 2015

In This Issue

Differentiate Yourself from Hospice and Other Care Providers

David Barmak, Esq.

Gerald V. Burke, M.D., Esq.

Jo Ann Halberstadter, Esq.

Click on Attorney's Picture for more Information

Differentiate Yourself from Hospice and Other Care Providers

By: David S. Barmak, Esq.

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.

If you have questions regarding this article, please contact our office by telephone at (609) 454-5351 or email info@barmak.com.

Barmak and Associates, LLC

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to skilled nursing facilities and other healthcare providers.

Representative Clients:

Entities: Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

Providers: Physicians; Therapists; Orthotists and Prosthetists

Suppliers: Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

Businesses: Billing; Management service organizations; Independent provider associations

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

Transaction Issues: General Counsel Services; Contracts.

Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.

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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com

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