M3 hosted the 12th Annual Quality & Risk Summit on June 12, 2025, in Madison, WI. A multi-disciplinary partnership of healthcare providers, legal counsel, and insurance carriers convened to share real-world experiences and advance risk management best practices for senior living and human service providers.
A notable enhancement to this year’s program included hearing directly from plaintiff attorneys. Kevin Martin and Drew DeVinney from Martin Law Offices participated alongside Pat Sullivan and Ellison Hitt from Siesennop & Sullivan, providing attendees with comprehensive legal insights from both sides of healthcare litigation. We ended the day with a panel of experts which included Lori Koeppel, Clinical Consultant at Koeppel HCS, LLC, along with Pat and Ellison.
Key Insights
Litigation Lessons: Legal Perspectives on Protecting Residents and Reducing Risk
Candid Insights from Both Sides of the Aisle to Strengthen Care, Culture, and Compliance
Martin Law Office, S.C.: Kevin R. Martin, Attorney, Founder & Managing Partner
Drew J. DiVinney, Attorney
Siesennop & Sullivan: Pat Sullivan, Attorney, Partner
Ellison Hitt, Attorney
Case Development
- Plaintiff attorneys will often encourage families and residents to make a complaint with the Department of Health to determine if the state feels there is a concern or citation warranted.
- Plaintiff firms will also review existing Statements of Deficiencies to help build their case.
- The standard of care not being met by a facility is what plaintiff attorneys seek to discover and severity of a citation is not always important.
- Cases involving falls with significant adverse outcomes, pressure injuries, and elopements are still highly sought after by plaintiff attorneys.
Depositions & Witness Testimony
- Staff who are direct caregivers are questioned differently than administrators, directors of nursing, or other leaders within the organization.
- Direct caregivers and licensed staff will be interviewed by plaintiff attorneys about how they are able to carry out the policies and procedures related to their job and staffing levels.
- It is best practice to debrief with staff involved immediately after a sentinel event occurs, so everyone is aware of the details of the event and the steps taken to correct any gaps in the process. This helps with accurate documentation for internal investigations as well as accurate documentation for medical records.
Arbitration Agreements
- Martin Law has seen a decrease in use of Arbitration Agreements by providers which works in their favor as the plaintiff attorney.
- Arbitration Agreements are still recommended as a tool for providers to have and use when necessary.
- Defense attorneys and insurance carriers will leverage arbitration to minimize punitive damages.
- Arbitration Agreements are valid only if signed by:
- A resident who is responsible for their finances
- Legal Financial Power of Attorney
- Legal Guardian
- Legal Conservator
- Ensure Arbitration Agreements are drafted by an attorney who is well versed in your state’s arbitration laws.
For more information on arbitration agreements, please revisit M3’s article on the subject.
Arbitration Agreements: Key Takeaways from M3’s Defense Symposium
Communication
- Families and residents tend to seek out plaintiff attorneys because of the feeling that there was lack of communication or apology after an event with adverse outcome (sentinel event).
- Leadership is highly encouraged by both plaintiff and defense attorneys to speak with families and responsible parties after a sentinel event.
- Review Grievance Procedures to ensure concerns are addressed timely and thoroughly.
- Wisconsin providers can utilize the Wisconsin Apology Statute. This statute allows for healthcare providers to make a statement or gesture which “expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.” This must be done before civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration occurs.
Documentation
- Plaintiff attorneys will look for gaps or missing documentation (assessments, progress notes, trackers).
- Documenting the same information in multiple places leaves room for error or omitting documentation, leaving providers vulnerable to litigation. Consider streamlining the processes and places within the medical record where staff are required to document.
- Take the proper and necessary steps to clarify and correct any documentation that may be incorrect in a resident record.
Key Insights
Outside In: Legal and Clinical Insights to Strengthen Operations and Reduce Risk
Perspectives from Defense Counsel and Industry Experts on What Drives Excellence—and What Signals Deeper Vulnerabilities
Siesennop & Sullivan: W. Patrick Sullivan, Attorney, Partner
Ellison F. Hitt, Attorney
Koeppel HCS, LLC: Lori Koeppel, RN, NHA, DON-C, DNS-CT
Common Gaps in Processes
- Improper documentation practices
- Missing, incorrect, and/or documentation in too many places
- Subjective documentation – feelings over facts.
- Using words or phrases in progress notes and other discoverable documentation that imply failures in standards of care (i.e. “abuse” or “neglect”)
- Lack of consistent Admission and Readmission Process
- Over-promising that services and treatments can be provided when there is a lack of staff training or resources.
- Lack of Quality Assurance Program or Quality Assurance program is not effective
- Checking the box vs. implementing lasting change.
- Communication breakdowns between families, residents and the staff – especially when an adverse event occurs
- Lack of process to manage an adverse event
- If law enforcement is on site, staff are not always trained on how to interact with law enforcement.
- Lack of leadership intervention to assist direct care staff in the moment.
- Inadequate investigation, root cause analysis, and follow-up with the resident, family/legal responsible parties, and staff.
- Inadequate policies & procedures
- Policies that are too narrowly focused and not broad enough (sets staff up for failure).
- Lacking policies and procedures for basic standards of practice and standards of care.
- Creating a policy & procedure for everything even if it is not necessary or required under regulations (i.e. knee-jerk reactions to survey citations or “because a surveyor said so”).
“Inspect What You Expect” – Quality Assurance Programs
- Ensure there is an interdisciplinary team approach, including direct care staff when possible.
- Use internal trending data and data from external partners to help create goals.
- When creating goals, ensure they are realistic to the current state and performance your organization.
- Ensure that any forms, tools, audits, internal investigations and reports are adopted under the QA Committee per the medical peer review statutes for your state.
- Wisconsin Statute §146.38
- Minnesota Statute §145.61-145.66
- Not all licensed settings are covered under the medical peer review protections. Review your applicable state statute or reach out to your legal and risk management advisors to ensure that your licensed setting meets the requirements of the medical peer review privileges.
- Monitor progress through audits and bring back findings to the QA Committee. Make necessary changes to goals based on audit outcomes.
- Consider Leader Rounding and review the organization’s “Open Door Policy” to ensure that it is truly being followed
- Encourage a psychologically safe environment for employees to report accidents and/or near misses without the fear of retaliation.
Early Defense Strategies
- Engage your risk management partners (i.e. chosen risk advisors, clinical consultants) early and often as you review data and trends from your QA program.
- Use the “near misses” and complete tasks such as policy and procedure review and revisions or staff education.
- Engage the expertise from legal counsel early after a sentinel event, especially if there are serious injuries or unexpected deaths.
- Ensure staff at all levels are briefed on the situation and who to direct questions or concerns from family members or outside stakeholders.
- Consider the use of a public relations firm to help manage media coverage and train staff on messaging and communication.
