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Defense Symposium Recap: A Conversation with Attorneys

Property & Casualty

The long term care industry faces unique challenges. Its daily work and purpose intertwines with the legislative, insurance, and litigation worlds in complex ways, perhaps in a more prominent way than any other industry. In light of this, the Annual Defense Symposium began.

During the hard market of 2001, M3’s senior living and social services practice group led the industry by taking a forward-thinking approach to challenges beyond just the placement of insurance. We felt that changes needed to be made in the marketplace so we focused on three pillars that we believe have the greatest impact on the long term care industry:

  • Risk Mitigation
  • Influencing Litigation
  • Advocating for Legislation

One outcome of that shift was the creation of our Annual Defense Symposium. In the beginning we brought the leading insurance carriers together to hear litigation strategies from the most successful defense attorneys. Later we opened up the forum to include our clients to provide insight on risk mitigation, litigation, and the “why” behind the legislation.

This year’s Annual Defense Symposium was a blockbuster event, bringing together a plaintiff attorney and a defense attorney in a one-of-a-kind conversation about long term care industry litigation. Below, we’ve laid out a few of the key learnings that we believe are most important for your organization. These statements are not legal advice and should not be seen as such. We recommend consulting with your attorney on all matters related to litigation.

Risk Mitigation Strategies for Long Term Care Industry

  • In addition to CMS Star ratings, citation history, complaint surveys, and a poor social media presence increase likelihood of being selected by a plaintiff attorney. This includes negative comments on social media platforms from employees or former employees.
  • Although plaintiff attorneys primarily seek systemic issues, they may also find value in isolated incidents. In these cases, your defense will try to argue egregious behavior out of the scope of employment and separate good vs. poor employees, however this is not so easily done.
  • Key Takeaways:
    • Survey results matter in risk management and complaint surveys have the biggest impact. Review your grievance policy and incorporate customer service training for employees.
    • Employees, past and current can not only impact your brand, but influence litigation. So having a good culture and addressing employee well-being is essential.
    • Spend time, money, and resources to educate and train your employees (not just at orientation), as training will come up in a plaintiff attorney’s argument and may potentially become a liability for the defense.

Influencing Litigation in the Long Term Care Industry

  • While the defense will focus on the medical components of the case and lean on key experts, the plaintiff attorney arguments will appeal to the emotional response of the jury.
    • In addition to the defense’s medical arguments, they may also use causation, leaning on caregiver’s purpose and dedication to serve.
    • Plaintiff attorneys may exploit charismatic parties of the affected individual driving the value of the case through pain & suffering and loss of consortium.
  • Key Takeaways:
    • Document, document, document if you don’t, its food for the plaintiff attorney and makes it more difficult for defense attorneys to defend you.
      • COVID-19 highlight: Given the novelty of the virus and ever changing best practices-be sure to document what changes were made to your policies and procedures as well as when the changes were made. This allows you to defend what you did as more information was released.
    • Keep a copy of the exact information that was given during a record release. As this information is most likely being directed to the plaintiff attorney. This allows for the defense to have an even playing field and no surprises in the court room.
    • Keep a copy of any information given to the state surveyors during a complaint visit or annual inspection.

Advocating for Legislation in the Long Term Care Industry

  • Plaintiff attorney stated the immunity given to long term care providers in Wisconsin in relation to COVID-19 was particularly important. M3 with associations and lobbyists are currently looking to get COVID-19 immunity reinstated.
  • Residents or families of deceased residents with outstanding bills are filing claims against the provider for poor customer service or poor quality of care.
    • M3 is working with associations, insurance company lobbyists, and independent lobbyists to create lien protection for long term care providers, similar to other providers in the healthcare space

M3’s senior living and social services practice continues to pioneer new strategies in the industry to educate and support providers and influence better care for residents. To learn more about working with an insurance broker who specializes in the long term care industry, reach out to an M3 Account Executive.

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