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David Barmak, Esq.
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Jo Ann Halberstadter, Esq.
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Talking May Be the Best Preventative Medicine for Nursing Homes
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By: David S. Barmak, Esq.
Many lawsuits are the result of the inability or unwillingness of nursing home staff to communicate with a patient and/or family when an incident occurs. Very often the staff member is reluctant or afraid to discuss the "why's and how's" of a particular situation with the resident but most especially with the family. The reluctance on the part of the staff in conjunction with the time elapsed from the occurrence relates to the appearance of guilt on the part of the facility and the more likely the family is to consult the Department of Health and/or an attorney. The attorney will then retain an expert witness, usually a physician in order to support a claim for negligence or malpractice. Even though there may not be enough to sustain a real case of negligence, the attorneys may press forward with a lawsuit with minimal support, hopeful that during the discovery process stronger support for the negligence claim will be uncovered. In addition, the opportunity to shift attorneys' fees to the skilled nursing home is a potential if the residence rights can be proven to have been violated. Is this a fair and appropriate modus operandi? Perhaps not, but it is how many professional malpractice attorneys proceed. Obviously, you cannot avoid being sued. What you can avoid, however, are lawsuits that have less merit but are filed primarily because of the lack of timely and appropriate communication between the resident, family and facility staff. The following are examples: - A resident is admitted to the facility with stage I or stage II pressure ulcers and/or perineal excoriation's that are small in size. It is imperative that the staff inform the resident and/or family as soon as possible as these wounds may get worse before they get better.
- The resident is admitted or returns to the facility with a stage III or IV pressure ulcer that was either not there prior to discharge, developed or became worse at the hospital. It is imperative that the staff inform the resident and/or family regarding the existence of the wound and the stage along with interventions that are being implemented as the hospitals are discharging patients with "stage II" wounds that are improperly staged. The recent CMS guidelines prohibit the reimbursement to hospitals for avoidable hospital acquired wounds above stage II. If the family thinks that the wound was stage II at the time of discharge and find out that it is stage III days later, the assumption will be that the facility is at fault.
- The resident is assessed as a high fall risk and multiple interventions are in place, however, the resident continues to fall.It is imperative that the staff request a family meeting as soon as possible to discuss the situation with the family and involve them as much as possible in the care planning process.
If a skilled nursing facility can prevent even a small percentage of these types of cases from being filed due to poor communication and "poor bedside manner" on the part of the staff, the facility's professional liability premiums will be less; and the facility staff may have more time to do what they were trained to do, "provide healthcare." Depositions and court appearances require huge amounts of staff's time. Most preliminary professional liability inquiries result from some type of incident during the process of providing care. If the patient/family does not fully understand that there may be some medical reason for the resident's condition such as a wound, fall, or continued pain they are more likely to initiate a lawsuit. If a nurse or interdisciplinary team member sits down with the patient/family after an incident to fully explain what has occurred, this may be the first step in creating an amicable dialogue. What is important, however, is the continuation of this dialogue for weeks or months following the occurrence. A few minutes of heartfelt discussion may avoid what can easily become a snowball rolling downhill and gathering momentum in size. Of course, what was said in the previous paragraphs was not meant to convey a prescription for preventing all professional liability lawsuits. As with most things in society today, perception is sometimes more important than reality. If a patient perceives that the facility is caring, understanding, and communicative, then the patient/family may not look beyond this point. It is only when patients/family truly believe that the staff has not been honest or is withholding information that they begin to think other things which may eventually lead to an investigation as to whether or not the facility has committed negligence or whether or not the facility is negligent.
If you have questions regarding this article, please contact our office by telephone at (609) 454-5351 or email info@barmak.com.
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Do Not Resuscitate Directives - Are You Handling Them Correctly?
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By: Jo Ann Halberstader, Esq.
Do Not Resuscitate (DNR) directives demand the attention of numerous parties at skilled nursing facilities. Is your staff handling them correctly? Presently a resident and/or responsible party can make the decision for a DNR or DNT (do not transfer to the hospital) and the resident and/or responsible party can sign a form to validate the decision. The conversation regarding the decision must be documented in the IDPN notes by the nurse, the physician and a social worker.
The DNR/DNT form should be signed by the resident (when possible), the responsible party, the physician and a social worker. Once signed by all parties, the form is kept in the medical record with a copy in the social service file.
If the resident's condition is such that a change in condition is eminent, the responsible party and nursing staff can discuss the DNR and/or DNT decision. The form can be faxed to the physician for a signature pending the next visit at which time the physician can sign the form and document the conversation.
If the resident arrives from the hospital with a copy of a DNR, it should be included in the admission orders as a telephone order that will remain in effect until the physician visits and discusses the DNR with the resident and/or responsible party and signs the form. On the next visit the family, nurse and social worker can complete the form.
Keep in mind that your social worker must review advanced directives with each resident on admission, readmission and at least annually to see if the residents wishes have changed.
If you have questions regarding this article, please contact Jo Ann Halberstatder, Esq. by telephone at (609) 454-5351 or email jhalberstadter@barmak.com
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| 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.
The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.
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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