Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Health Care Providers

Volume 17, Issue 5                 ADVERTISEMENT                                May 2016

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In This Issue
Accepting the Inevitable
When People Refuse Care
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

Click on Attorney's Picture for more Information 




Accepting the Inevitable

In many ways, perfection is critical when dealing with the health and well-being of residents and patients. However, no person is perfect, and no facility is perfect.  Mistakes are inevitable, and how you respond to mistakes will often determine how significant the government considers the situation to be. The mistake might be a medication error, a privacy violation, or an employee problem. You may have discovered the mistake through your auditing process, by a complaint from an employee or client, or through accidental but fortunate exposure. Once that happens, the government will judge you in large part by what happens next.
You want to ensure three things occur upon the discovery of a mistake:
1. That the mistake itself is corrected.
2. That preventative measures are taken to ensure the mistake does not happen again.
3. That appropriate disciplinary actions are taken against any employees who were responsible.
These three actions demonstrate an effective response. Such a response would show government investigators that the provider recognizes the need to change something and act accordingly. Under Federal guidelines, correcting mistakes can mean a mandated decrease in penalties.  Any such efforts should be fully documented and carried out as consistently as possible when compared to other situations. If the situation is reportable, then such a report should be made promptly. Policies and procedures should be reviewed and updated as necessary to limit recurrences. Employees who made a mistake should be treated in a proportionally consistent manner as employees who had made previous errors.
Perhaps the worst action a provider can take is to try and cover up the mistake. As the old Nixon adage goes, it's the cover up that will get you in the end. Be sure to accept the mistake that has occurred and deal with it head on. Efforts at covering up mistakes often fail and result in much more significant repercussions for the provider.
To ensure the most appropriate response, an effective Affordable Care Act compliance program should be in place well before a mistake occurs.
If you have any questions concerning establishing such a program or addressing a particular mistake that has occurred, please contact our office at or by calling (609) 454-5351.

When People Refuse Care 

Healthcare providers are often presented with a scenario where a patient in need of care refuses help. This can be particularly frustrating for a provider who knows that the patient needs the help and cannot figure out why someone would refuse their care. Often, providers wish there was a way that they could convince or even force the patient to accept the care that they desperately need. But often, there is nothing the provider can do.
The situation may further be complicated if there are family members arguing in favor of providing care and if there is a question as to the patient's ability to make healthcare decisions for themselves. When it comes to legal decision making, however, there is generally no middle ground. Either the patient has the right to make a decision for themselves or they don't. For example, if a long term care facility resident is perhaps 60% cognitively aware, a provider may believe that someone else should make a decision. But if the resident can definitely declare their objection to care, and if there is no legal guardian for that resident, then even a person with limited decision making ability can still make such a decision.
The only scenarios where another person can make the decision on behalf of a patient is when there is a legal guardian or when the situation suggests that a provider has the patient's implied consent. Implied consent often involves unconscious patients who could be expected to give consent for care if they would have been conscious, or where a patient's acute clinical condition suggests impaired decision-making capacity. In an implied consent situation, the patient is presumed to consent to care which is immediately necessary to correct a life-threatening emergency.
When a situation calls for a guardian, perhaps in a case where a patient and his or her family member is arguing over care and the patient's ability to make decisions is questionable, the answer may be an emergency medical guardianship. The requirements to obtain this guardianship varies from state to state, but in some cases can even involve waking a judge up in the middle of the night to render a decision over the phone. Although these emergency cases are rare, when they arise, it is critical that providers know what they need to do.
If you are having issues regarding patients refusing care or would like more information regarding the procedures for emergency medical guardianships, please contact our office at or by calling (609) 454-5351.

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 

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