Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Liability for Long Term Care and Health Care Providers

Volume 17, Issue 2 ADVERTISEMENT February 2016

In This Issue

Guardianships Can Be a Long Term Care Facility's Best Friend

What Role Does a Nursing Home's General Counsel Play with Respect to Outside Counsel's Defense of Lawsuits Against the Nursing Home?

David Barmak, Esq.

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

Jo Ann Halberstadter, Esq.

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Guardianships Can Be a Long Term Care Facility's Best Friend

By: Jo Ann Halberstader, Esq.

Many times a long term care (LTC) facility has no one to turn to during a medical emergency to obtain necessary authorization to provide appropriate medical care for one of its residents. Also too often a LTC facility is ignored by family members when it comes to applying for or tapping available financial assets to pay for the care provided for a resident.

A guardianship may be an appropriate legal solution to help your facility to take action in these and other situations. A guardian may be appointed by the court if it is proven that the person is a danger to themselves, incompetent to care for themselves, or is facing financial abuse situations including having potential or actual financial assets which are not being marshaled for the benefit of the resident and the long term care facility either because there is no existing family or there is family but they are racked by dissension.

There are two types of guardianships: Guardian of the person (this person will make decisions regarding medical care and daily living needs) and Guardian of the estate (this person handles all financial matters and is the guardian of property). A guardian who does both is called a "general guardian." All types of guardians have to be approved by the court in order to act as a guardian. If a family member or friend who wants to be the guardian is not approved, the court will appoint an independent guardian.

If you have questions regarding this article, please contact Jo Ann Halberstatder, Esq. by telephone at (609) 454-5351 or email jhalberstadter@barmak.com

What Role Does a Nursing Home's General Counsel Play with Respect to Outside Counsel's Defense of Lawsuits Against the Nursing Home?

By: David S. Barmak, Esq.

Outside counsel are hired by or provided for a nursing home in numerous situations. The one that comes to mind quickly is when a nursing home is sued by a current or former resident. The nursing home's insurance company provides counsel to defend and indemnify the nursing home. Indemnification means that the insurance company will pay for any settlement or verdict against the nursing home that arises out of the alleged claim. All professional and general liability insurance policies have coverage limits as well as a deductible. The amount of insurance coverage offered by the policy is purchased with the goal that it will cover any liabilities incurred by the nursing home. It must be noted that at the conclusion of the case if the verdict is against the insurance company and the judgment includes punitive damages and/or attorney's fees for the plaintiff, these costs are not covered by the professional or general liability policy. Therefore it is imperative that the nursing home's General Counsel must from the start of the proceedings put pressure on the insurance company to settle or reach a verdict that is within the policy limits.

The General Counsel plays an important role in assisting the outside counsel and the nursing home in the investigation of the alleged claim, the interviewing of employees, the collection of documents, review of charts, etc. as well as the defense of the alleged claim.

The General Counsel should be notified along with the insurance company as soon as a potential claim arises. This occurs when an attorney for the suing party asks the nursing home for a copy of the resident or former resident's medical chart. The General Counsel should work with the Director of Nursing to review the medical chart requested. Once it is reviewed and a summary of potential liabilities are critiqued by the General Counsel, the summary and the review should be submitted to the insurance company's counsel. At that time a copy of the medical chart can be sent to the requesting attorney.

A copy of the chart should be kept on the floor in the event that it is needed. The original and a second copy should be locked in the administrator's office to ensure that no modifications, changes or deletions are made by anyone.

The General Counsel should oversee this whole process assuring that it is done properly. In addition, the General Counsel should ensure that electronic records are not destroyed and that electronic record systems are in place to maintain documents in the event that a lawsuit goes forward.

The General Counsel should be copied on all documentation to and from assigned counsel, advise administration and owners as to what is happening in the lawsuit and should stay actively involved in the entire case.

The General Counsel should actively assist outside counsel and administration understand the proceedings as the lawsuit moves from step to step, including participating in mediation efforts as well as a trial if any. Often a General Counsel's participation contributes to save a nursing home's staff a tremendous amount of time as well as helping to avoid a potential verdict beyond a policy's limits and/or the awarding of punitive damages and/or attorney's fees.

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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