M3 hosted the 10th Annual Healthcare Defense Symposium on September 14, 2023, in Madison, WI. Providers, attorneys, and insurance carriers came together with the overall goal of sharing experiences and education to further aid in defense strategies for senior living and social services providers.
This year’s focus was a “Deep Dive into Liability Claims”. Attendees were able to hear from panelists who did a deep dive into an actual provider claim, current litigation trends, and the newly trending topic of Environmental, Social, and Governance.
Panel: Perspectives of a Claim
Claims can happen to any provider, and they can happen to the best in the senior living industry. Our audience was given the opportunity to hear from a panel which included a provider and defense counsel who shared with the group their experiences working together on two separate claims in the skilled nursing setting and the assisted living setting.
- Turnover in key leadership or supervisors can be a vulnerable time for lapses in adhering to policies and procedures. Consider alternative ways to monitor documentation and adherence to policy and procedure in the transitioning of leaders and supervisors.
- Plaintiffs’ attorneys will most often encourage families and residents to make complaints to the Department of Health. If citations arise due to the complaint investigation, plaintiffs’ attorneys will request these survey records and use to their advantage to “prove” that the facility was deficient in practice.
- Informal Dispute Resolutions (IDR)—Although the IDR process can be daunting, it is important to pursue the IDR process and challenge the state survey citations if you believe that your process met the standards and regulatory requirements. The IDR process can continue regardless of where a claim stands.
- Settlements vs. Jury Trials—Some cases are better off being settled and some cases are worth going to trial. The carrier will review the medical records, depositions, expert witness reviews, and other circumstances around the incident and determine which course of action should be taken.
- Mediation vs. Arbitration
- Mediation occurs between both parties as an expedited way to negotiate a settlement. The mediator does not have any control over the outcome. Early Mediation between the Plaintiff and Defense attorneys is best practice.
- Arbitration is a more formal process used typically when both parties do not come to an agreement on settlement terms. The arbitrator decides the final outcome.
- Building the Provider Framework for Defense
- Administrators, DONs, and other leadership positions should be the “right fit” for the organization and company culture.
- Manage expectations with families/responsible parties and residents. Communicate what they can realistically expect in regards to care, and utilize the admission agreement to formalize (i.e. residents are not directly supervised 24/7).
- Leadership should address concerns and grievances immediately –do not avoid those who complain often.
- Documentation—Assessments, care plans, individual service plans, and progress notes should be complete and accurate, and implement processes to audit and monitor on a consistent basis.
- Monitoring and Auditing—The organization’s internal audit and quality improvement process should be instrumental in ensuring processes are followed and corrective actions and process improvement are taken if gaps are identified. Track and trend incidents and bring to the facility’s quality assurance
- Training and Education – Efforts to train staff and demonstrate competencies regarding the resident population being cared for and organization policies and procedures is vital to strengthening the defense.
Current Trends in Litigated Claims
Pat Sullivan and Ellison Hitt of Seisenopp & Sullivan, LLP, reviewed current trends in litigation within the industry.
Arbitration Agreements can be a great litigation management tool but are commonly contested by plaintiff attorneys. If utilizing arbitration agreements, providers need to invest resources to aid in the enforceability of the agreements, including having an experienced attorney draft the agreement, educating employees who go through the agreement with residents & families, and monitoring the acceptance rate.
- Staff who are responsible for delivering the arbitration agreement should be trained on what the arbitration agreement means and how to properly explain to a resident/client or legal responsible party.
- Power of Attorney vs. Resident/Client—Resident/Client should be deemed cognitively able to sign Arbitration Agreements. Power of Attorney documentation must be clear as to duties and responsibilities, including authority to sign arbitration agreements on behalf of a resident/client. Staff should be trained to identify the correct type of legal responsible party responsible for signing the arbitration agreement. They should also be aware if a resident is or is not cognitively able to sign their own arbitration agreement.
Third Party Investigations
- If a facility receives any requests from the Department of Justice (DOJ) and/or if the police are actively involved, this may be a criminal investigation. Consider retaining a criminal attorney to assist with the appropriate response to DOJ and police.
- If the police request resident/client medical records, you do not have to offer this information right away—consider consulting with your attorney prior to the release of records. If you are issued a subpoena however, you are required by law to turn over records.
- Police Body Cameras—Train staff on how to speak to police officers and what to say to police when they enter the facility, as body camera footage is used as evidence. Resident conversations and statements taken on body cameras are also used as evidence to ensure other residents are not present during police investigations or visits to a facility as a result of an incident.
Licensing Board Inquiry
- Nursing Licensing Board complaints are the #1 complaint for licensing boards. Nursing Home Administrator complaints are on the rise.
- Consider consulting with an attorney experienced with licensing boards if you are ever issued a complaint.
- There seems to be an uptick in Medical Examiner investigations and requests for resident records and documentation
- Facilities do need to comply with Medical Examiner requests for records, and review policy and procedures to ensure that this is outlined.
Fraudulent Representations WI Statute 100.18
- Plaintiffs’ lawyers may start adding this statute to their cases as a way to collect attorney’s fees.
- This statute addresses advertising and marketing—ensure that advertising and marketing materials are accurate and representative of the services offered to residents.
- Key phrases to stay away from: “fully-trained staff”; “5-Star boutique resort”; “committed to helping keep you and your loved ones safe”.
- Plaintiffs will ask for publications, marketing materials
- Consider having a regular review of marketing materials internally or consulting with an attorney.
Cooperation Between the Facility and Defense Attorney
Cooperation between the facility and the defense attorney team is the key to ensuring a smooth process. Defense counsel is there to represent your best interest.
- Speedy record request retrieval is recommended and highly appreciated by defense attorneys.
- Documentation practices—ensure that staff are trained on proper documentation practices so that records are complete and accurate to aid in defense strategy.
- Employee attitudes and candor when being deposed or interviewed by defense attorneys also matter and further help move the claim along. Train staff on what to expect and how to interact with the defense team.
Top Causes of Loss
Amy Scholl, Attorney with Coyne, Schultz, Becker & Bauer, S.C., shared the top causes of loss for providers and discussed strategies to help with preventing claims.
Falls—Leading Cause of Claims
- Fall Risk Assessments—avoid the use of “low fall risk”- either fall risk or high fall risk.
- Documentation of interventions and plan of care updates- monitoring this is completed.
- Negotiated Risk Agreements—Use as another form of documentation; supports defense of facility.
- Clearly define the maximum level of care that your health care setting can support.
- Ensure staff are competent and trained appropriately to the standards of care and policies and procedures.
- Implement appropriate elopement training and drills for employees. Employees may be subject to “alarm fatigue” and become desensitized to the sounds of alarms.
- Create a checklist for Elopements/Missing Persons and include completing a head count of all residents as part of the checklist when an alarm is sounding and/or when a resident is missing.
- Consider reviewing to ensure training is completed for all staff who are involved with implementing and executing a resident’s plan of care for diets (i.e. Nursing, Culinary Staff, Registered Dietitians).
- Audit orders and collaborate with Primary Care Physician and Speech Therapy to ensure the resident has the correct order and interventions in place.
- Consider reviewing facility policies and procedures regarding standards of care for supervision during meal times.
Assault and Battery
- Review organization Abuse Prevention and Prohibition policies and procedures to ensure all forms of abuse are prohibited (including resident to resident abuse).
- Investigate thoroughly any allegations of abuse and injuries of unknown origin.
- Review organizational policies to ensure caregivers have background checks cleared and in the employee file prior to working.
- Ensure staff are trained on abuse (identifying, reporting, prohibiting) and de-escalation training for behavioral health is completed upon hire, annually, and on an as-needed basis.
Lack of Documentation
- Lack of documentation or failure to document appropriately about the resident’s condition or changes in condition do not support the defense strategies.
- Ensure all necessary assessments are fully completed upon admission and ongoing per standard of practice is completed thoroughly. Ensure policies and procedures identify that residents/clients should be reassessed after changes in condition.
- Care plans, individual service plans, and progress notes all should be completed thoroughly as well.
- Negotiated Risk Agreements are a good intervention to show that the facility has addressed concerns with the resident and family, however, these do not necessarily bar a lawsuit or claim against a facility.
- Train required staff on how to assess, investigate incidents, and document appropriately.
Environmental, Social, and Governance (ESG) in Defensibility
Terry Leahy, President and CEO of MyPath, Blaine Thomas, Vice President Industry Leader for Aging Services at CNA Insurance, and Talia Pletcher, Risk Manager at M3 Insurance introduced the concept of ESG to the audience and discussed how ESG initiatives can potentially assist with defense strategies.
- MyPath has made ESG part of the organizational culture and strategic planning. Terry and his leadership team have committed to making this a part of their mission.
- 100% employee-owned, hired an ESG Director and Director of DEI as part of leadership.
- Invest in ESG initiatives as an organization—ensure this is made a priority in the budgets and ensure boards of directors understand why it is important to the mission, vision, and values.
- MyPath has tackled Fleet Costs and Emissions as well as Energy Costs (E); reduced turnover and increased retention, decreased hotline reports, and increased diversity amongst management (S); Committed to Board Diversity (G).
As a carrier, CNA Insurance is beginning to recognize an intersection between ESG initiatives implemented in organizations and how it affects the claims process and defense strategies.
- Organizations that invest in their employees and residents/clients can lend to changing public perception of senior living and social services organizations.
- Reputation of an organization matters, especially for jury trials. Social inflation is affecting the outcome to trials as jury perception is heavily influenced by many factors (social media, employee treatment, government perception of industry).
M3 Insurance continues to work with clients to better understand how ESG can benefit their operations, including aiding in overall defensibility.
- Supply Chain Management—work with vendors and hold them accountable to ensure that they are providing your organization with ethically produced products as well as reducing waste.
- Employee Resource Groups are a great starting point to build a positive company culture and become more in tune with the community at large.
- Change the narrative of how potential jurors and the public views the organization. Employees are powerful when it comes to the reputation of an organization.
- Implementing various ESG initiatives can potentially have a positive impact on an organization’s overall brand, culture, and impacts on the community—all of which can come into play, especially during a claim that results in a jury trial.
In episode of the Candid Care podcast, we’re excited to share exclusive insights from M3 Insurance’s recent Healthcare Defense Symposium with special guests Crystal Miller from Frontida Assisted Living and Emily Koch from Illuminus.
Common Themes of the Day
Documentation Practices—Documentation matters in many ways for an organization. Staff training on how and when to assess a resident/client and continuous audit of documentation will make big differences in the long-run. Read more in this related article, Resident Record Documentation Do’s and Don’ts.
Training leadership to manage expectations with residents/clients, families, and employees and having proper procedures in place to manage adverse events can assist with defense strategies and claims management.
Changing the narrative on how the public, including potential jury pools, perceive senior living and social services organizations matter in outcomes on claims and jury trials. The way an organization invests and advocates for employees, residents, and the community at large can positively impact their reputation.