Candid Care: Investigation Complexities & How to Prepare

00:46 Sara Kekula

So, with us today, we’ve got Ellison Hitt and Pat Sullivan from Siesennop and Sullivan at Law they’re both attorneys at law practicing in the healthcare space and on the heels of M3’s 11th annual risk and Quality Summit, we are taking some time to follow up with both of them and talk a little bit more about liability claims lessons learned how providers can build resilience. So thank you, Pat and Ellison for joining us today.

01:13 Pat Sullivan

So I’ll just jump right in. I’m Pat and Ellison can introduce herself in a moment, but our business is defending long term care professionals and providers like yourselves. We’ve been at this for quite a while and we enjoy what we do and we enjoy working with you. And with M3.

Today, we want to highlight an area in our practice that has been rapidly evolving over the last four to five years I guess. And that is the police, investigative and regulatory investigative side of claims.

And we’ll take you through some specifics case examples. We’ll take you through some strategies to perhaps lessen the impact, the negative impact of those police and other regulatory investigations. In other words, things you can do in advance to mitigate the harm that can result from those investigations and Ellison is going to jump in right now and talk about generally the kinds of investigations that will be addressed.

02:28 Ellison Hitt

I think a lot of you have or were probably in attendance at the summit, and if you weren’t, we offered five different types of lessons that we have been learning and seeing in our practice.

And as Pat said, one of those are really the impact of investigations from third parties. Those investigations beyond just the Department of Health Services, surveys that come in and take a look at the facility after they receive the complaint or after a self-report.

And so the types of investigations that we have been seeing include police investigations through the county, Municipality, State of Wisconsin: DOJ Department of Justice, Federal Department of Justice Administrative, which includes obviously the DHS, and then the Department of Quality assurance caregiver misconduct. And then also licensing for complaints against specific healthcare providers for their license. Those would be, you know, nursing health administrators, nurses, those sorts of licensees.

And then finally, some other investigations include medical examiner investigations, adult Protective Services, and investigations by plaintiffs attorneys or their private investigators, where they’re reaching out to usually, you know, caregivers or former caregivers, although sometimes they toe the line with that. So all of those investigations were really seeing a merge in how long term care cases are litigated and viewed by society, kind of in general?

04:20 Sara Kekula

Can you just elaborate a little bit when you talk about the police and the investigation specifically, who’s the target typically like? What does that look like in action?

04:30 Ellison Hitt

There isn’t just one loan target. The police investigations that we’ve been seeing look at basically anyone and everyone involved with the residents care whether that be the organization in general or a specific caregiver provider. 

04:51   

So oftentimes the very first contact with an investigative agency comes once the 911 call is made. Not only do the EMT’s respond, but the police respond as well. What we’re finding is, in many, many cases, for example, if something goes wrong in the NOC shift and there’s a choking incident or, you know, looping incident and the 911 call goes out and the police arrive in the very first contact that our client long term care provider, the very first contact they have with the police Is oftentimes recorded on a body cam video.

The person who is the first contact that the police make is most of the time unprepared for that initial contact. They may not even suspect that they’re on the camera, but nevertheless everything they say, every gesture they make, every look on their face, every nod or shake of the head, every rolling of the eyes, it is all recorded.

So, what’s important to keep in mind. And why that initial contact is so important is because the defense’s role here is to create a narrative about good care for that resident right? We have to tell our story in a positive light, because God knows the plaintiffs, lawyers are very adept at telling their story in a very negative light.

And we’re faced with a mountain of bias against us going into the case. So we have to develop a narrative that is positive in nature about how we care for the resin and if that very first contact portrays a negative impact about the facility or the care that we gave the resident, then it’s really, really an uphill struggle, even more so than it was without that body cam video.

06:50 Sara Kekula

I can only imagine the stress, the angst of a, you know, for example, a direct caregiver might feel if they are experiencing that our staff legally required to speak to the police when they show up to the doorstep or what’s, you know, what would be your suggestion or strategy? Should that happen? What do we need to be mindful of as providers in this space so we can be setting those direct caregivers up for success?

07:14 Ellison Hitt

In terms of the conversation with the police, I mean, if the police are responding, they’re going to have to do some sort of bare bones contact with the staff and that’s understood. You know, they’re responding to a sexual assault or, you know, choking case. They’ve got to at least get the skeleton of what happened.

So going into any significant or any opinion or factual basis in terms of an interview or providing a written, the individuals don’t have to speak with the police. They can very politely say, you know, I will speak with you, but I’d like to consult with an attorney. They don’t need to go above and beyond. And what I think we see generally is these individuals obviously they’re stressed, they’re afraid, but they also want to be very helpful. They’re healthcare providers. They’re caring for people. And so that definitely comes across in depositions that Pat and I have been involved with, but also in these conversations with police, they want to provide solutions, and they’re not necessarily seeing the big picture ramifications, which is a criminal investigation and obviously the criminal penalties that can come from that sort of investigation.

08:37 Pat Sullivan

So if I may add to that, the direct answer to your question, Sara is no. They do not have police, but as Ellison said, you have to be helpful, right?

So, one example that I can give that we saw recently of the good and a bad response by a caregiver volunteered to get the face sheet or the resident who had undergone or was experiencing actually a choking episode. He was being resuscitated on the living room floor. He was unconscious, obviously, and the policeman was asking questions about who the resident was and how old he was, and all of those sorts of things, and the caregiver said, let me let me run him back and get his space sheet and has all of that information on there for you. And she did that, then the police, as policemen do, it’s their job and some of them are very, very good at it. You decided, well, I’m going to find out what happened here, right, and whether there’s any basis for criminal charges against this caregiver or this provider.

So he starts digging in and that’s where the bad side of this example came in. She just started talking about what she thought happened because she was out of the room at the time and that that really shouldn’t happen.

So to bring that together in in a succinct way, no, you don’t have to talk to the police. You have to offer the officers, the basic information that they need. You can’t be uncooperative.  But you can say to that officer, I prefer to call my manager before I answer any more questions. The officer can’t say no. You can’t do that. If you’re not under arrest and they don’t have a warrant, then they’re there just to ask you questions that you may or may not answer.

The staff needs to know they don’t have to answer the officer’s questions. Just provide the basic information about who the resident is, even what happened. I’m hesitant to say, go ahead and volunteer what you think happened, because many times you really don’t know.  

I hope that answers your question. The staff need to be instructed, and especially NOC staff, because usually during the day someone in management is there, but the NOC staff really needs to be, you know you have to inculcate this into them. They cannot volunteer stuff to the police. They have to be prepared to say no. I’d like to call my manager.

11:25 Sara Kekula

It sounds like it’s going to be advisable for providers to have some sort of reporting escalation practice that if police come on site, of course they’re to be helpful in response, which is whatever it does want to do. But to your point, we’ve got to report it up to the appropriate manager, supervisor, etcetera, so that the leadership within respective organization can be made available to support that employee as well. I mean I know Talia, if you wanted to add to that.

11:52 Talia Pletcher

That’s exactly what I was going to reiterate is that. To your point, there should be a process in place at every organization, every facility, to make sure staff across all shifts know who to call. If the police show up and start questioning and respectfully know how to decline to answer when they are and being asked questions that are outside of their scope or their knowledge because things happen on other shifts, an employee may come on shift at night shift or PM shift and something else happened on the shift prior and they may not. They may not have all the details or know what’s going on, so they really should not be answering questions if they don’t know something.

12:32 Ellison Hitt

Something. It’s not just the caregivers we or the CNA’s. We have two cases that we got in recently and in both of those, the RN managers, one, she told all of the employees to participate in, operate with the police in their investigation. She has that documented in her incident report. So there she is instructing these employees to do the opposite, which is to speak with the police and in the other example, the RN manager is sitting at a table and again this is all on body cam basically having a root cause analysis with some of the other caregivers in front of the police and offering opinions and things like that.

So it it’s not just your caregivers or your CNA’s. It’s making sure that your management obviously knows their role and knows what they should and should not be doing in the situation as well.

13:40 Talia Pletcher Sara Kekula  Ellison Hitt Pat Sullivan

That’s very important to know because I think too, you know our healthcare facilities where in communities where law enforcement is our partner and a lot of things, they are very helpful. They come in and you know help triage different issues and but at the same time, we do need to understand our boundary and where you know what our role is in the investigative process.

13:58 Ellison Hitt

And again, that doesn’t mean that obviously we don’t want to work with the police, but the police’s perception of a narrative can be different. Their understanding of even the type of care that resident may be receiving can be different.

You know, a lot of times you hear police calling the facility, a nursing home when it’s a assisted living, maybe not even a memory care unit. And so there is a misunderstanding. I don’t want to say lack of knowledge, but that’s essentially what it is about the different types of care and organizations that are provided and obviously that gets worked into the investigation. And so that’s another reason why it’s really important to make sure that you go through the appropriate channels in having conversations about a significant incident.

14:47 Pat Sullivan

I doubt that police officers, either at the Academy or as continuing education have forced work that educates them about the differences between an adult family home and, you know, an RCAC assisted living memory care. They don’t know. And they’re subject to the same biases and perceptions as the general public about what goes on in our buildings. So a lot of the officers and I’m not going to cast aspersions on any police officer, God bless them with, you know, what they do is great. But, you know, many of them may come to the scene with this perception that we have done something wrong. And the last thing we need is the first contact from our facility buttressing that opinion right or getting any kind of support to that opinion

And it can be a very subtle thing. You know, it can be a shrug of the shoulders or roll of the eyes or you know, because you know, oftentimes Ellison mentioned the kinds of caregivers and the our healthcare providers and they want to help the some, their primary motivation is to deflect blame, right? It’s it’s not my fault. I was the only one on the NOC shift. And you know, you hear things like there weren’t enough staff or I didn’t have time to. You know, I had too much to do or, you know, those kinds of comments. And that’s very dangerous. So there’s a general rule. You don’t talk to the police, you don’t offer information like that. You just give them the basic necessities, then I think that’s a good way to go.

16:25  Sara Kekula

And can I ask too, you know, as I’m thinking about this, when a police officer shows up at the doorstep, do they have to disclose if their body camera is on?

16:34 Pat Sullivan

No. In fact, I think they forget it’s on half the time. We have one, Ellison and I, have one right now where the officer goes back to the goes back to the police station with his body camera walks in and he’s talking to his colleagues and he throws the belt on the table and it’s still video recording. I think they forget it’s on.

16:59 Ellison Hitt

One of the things that we obviously touched on briefly at this symposium was some of the changes that happened in 2020 with the institution of statutes specifically on agency, use of body worn cameras.

And what’s interesting about that is that there was some DOJ released data in November of 2020 and what they found was of the 380 agencies that responded, 88% were using at least one form of recording device among the officers.

With that in mind, it’s really important to always assume that when you’re interacting with officers, it’s on camera, you know, kind of like people are always online. Whatever you put online, you know, someone’s going to see, I think that same sort of mentality should be used in any sort of, you know, interaction with police at this point in time.

17:58 Pat Sullivan

That same survey 76% of all police agencies use body cameras and had as many body cameras as they had officers, so most police officers out there today have a body camera.

18:15  Sara Kekula

And so if if you were to maybe share with the listeners, what do you feel like you want the messaging to be or what is the thing you want providers and operators to remember, you know, on the you know, as we kind of look to close this conversation, what is the key take away you want To leave with them?

18:34 Pat Sullivan

Staff have to know that the very first contact in this case and the incident with the police is the very beginning of the story, right? It’s how our narrative begins for both the plaintiff, if there’s a lawsuit and the defense. So it’s critical that that initial impression not be a negative one. That’s the take away that I think is the most important.

And the second being, you don’t have to answer all the police officers questions, the body Cam video that we showed at the presentation couple weeks ago, you can see the police officer deciding in his own mind she, the caregiver, she is a criminal suspect in my mind. And his interview became a cross examination, and by the end of that 10 minute interview, he not only had a written statement from her saying exactly what he wanted her to say, but he had it on body cam video that she had not done her job and as a result, the resident had eloped and died in one part of the video you can hear he’s talking to someone else on the scene. Another officer and he says I’m here with the SUS. He almost said suspect and he’s staff that I’m here with the caregiver.

We all know what can happen, I mean, in Kenosha County last year?

20:05 Ellison Hitt

I can’t remember if it was last year, but obviously the elopement that led to three caregivers being charged.

20:15 Pat Sullivan

And they are now serving time. Very, very serious. We’re seeing many more elopements than we had in the past. I don’t know why that is. And unfortunately, the ones we see are typically in the winter months and you know, you know that the outcome is not good.

And so the police are always involved in that. And the medical examiner is as well. And so all of what we’re saying really applies to the medical examiner, too. I mean, you have to provide all of the records and basic information for the medical examiner, but you don’t have to give opinions and conclusions about what happened.

20:52 Talia Pletcher

Do you think it’s a leadership perspective or an administrator, you know, as they’re looking at how to train their staff, do you think it’s a good strategy or good idea to kind of almost do like a mock scenario where, have somebody be a police officer? Cause I think it’s easier said than done of, you know, when an officer in your building in your face talking to you, you feel it. There’s a little bit of, you know, like, OK, I really do have to. Like, listen to what they’re saying, answer their questions.
So do you think that that’s a good strategy to employ just so people understand how to respond so they’re not trying to think of what to say or how to say it. You know, without annoying the police officer or putting themselves in a position where they may still feel the pressure to regurgitate everything that they think they know about the situation.

21:40 Pat Sullivan

That might be a great idea, Talia, but at the end of the day, this is really hard, right? It’s hard for a caregiver to do this correctly. It’s easy for us to sit here as lawyers and you know, you know, for 30,000 feet, say, oh, you should say this.

You sit in the spur of the moment. It’s really, really hard and you can’t spend an inordinate amount of time training people about this, which hopefully will never even happen.

All you can do is what you can do, you know and hiring quality caregivers is the first instance takes a big piece of this, and that’s not always the easiest thing.

But yeah, I mean, you can do some mock, police interviews, you know, once a year for the whole staff just to give them some examples of what to do and not to do. I think that’s a really good idea, but again, it’s hard. It really it’s.

22:31 Sara Kekula

It is helpful Pat and Ellison because you know kind of echoing that these we’re talking about severity events that don’t happen often. So you know police showing up and you know, being part of an investigation and or even elopements, those are the ones that I, you know I would argue, you know most, groups have an experience or they won’t experience, but they can happen.

And so just to be aware, as to what can we do to make sure we are mindful and just considering all the things that could happen, it helps us build out a strong risk mitigation strategy to address it. So, you know, I do think and again I would just want to reiterate this, you guys have said multiple times, Talia has too the police are our partners. We don’t want to imply anything else, but we do want to make sure that providers understand what their rights are, again, should you know, a police officer show up at the doorstep.

So, I do think you guys have shared some really strong strategies about what groups can consider implementing, whether it’s education, you know, reporting escalation process and what have you. I appreciate you guys both making a time for us this afternoon.

23:48 Talia Pletcher

We look forward to continue working with you and hearing more about this topic and educating our clients and senior living providers in general. So thank you again for your time.