Key Takeaways from the 9th Annual Healthcare Defense Strategies Symposium

Senior Living & Social Services

For nine years running, M3 has hosted an Annual Healthcare Defense Strategies Symposium to bring providers, attorneys, and insurance carriers together with the overall goal of sharing knowledge and experiences to help providers be more “defendable” against litigation.

The 2022 symposium took place on October 5th with focus on “The Various Perspectives of Litigation”, and various perspectives were indeed received from providers, attorneys, and carriers alike.

Provider Panel – Lessons Learned in Litigation

We kicked off the day hearing from three different senior living and social services providers about their organizations’ experience with litigation. Key points made from the different providers include the following.

  • Executing arbitration agreements with residents/clients upon admission greatly favored the outcome of litigation, and even led to a case being dropped in more than one occurrence.
  • While an organization may have great policies and procedures on paper, the biggest challenge lies with the human element of effective training, monitoring for compliance, and overall culture of communication and accountability.
  • In each case, documentation played a key role in the outcome of litigation, particularly surrounding monitoring and documenting changes of condition, as well as narrative charting.
    • In one example, during the discovery stage of litigation, the scope of the claim was expanded due to what was or was not found in documentation. What system does your organization have in place for ongoing monitoring of documentation for completeness and appropriateness?
    •  Assignment sheets used by employees as well as staffing schedules were also used to the advantage of the plaintiff attorney.
      • Consider the need for assignment sheets. If you do utilize these, ensure that the assignment sheets consistently match the care plan/service plan.
      • Implement a process for updating employee schedules to be a true reflection of all the applicable employees to support adequate supervision, including agency staff and supervisors.
      • Do you have record retention practices surrounding “ancillary” documentation, and who’s responsibility is it to ensure the retention policy is being followed?
  • Information contained in employee files is a crucial factor in liability claims that may fly under the radar for providers. Corrective actions that contain descriptive information about employee behavior was used to the advantage of the plaintiff attorney. Consider reviewing your internal process for how disciplines and terminations are being written and with what amount of detail, keeping in mind that an external party may be viewing these at some point.
  • It is essential to be genuinely empathetic to a resident/client and their representatives when a negative incident occurs. Multiple examples were given of families stating throughout the litigation process how frustrated and upset they were by the perceived lack of communication and care from the organization. How a person is made to feel can significantly influence their decision of whether or not to pursue litigation.
  • Completing an “After Action” review after litigation wrapped up was a valuable learning experience for the organization to identify opportunities for improvement with operations and overall litigation management.

Jury Trials – Recent Attorney Experiences

Pat Sullivan and Ellison Hitt of Siesennop & Sullivan, LLP provided the rundown of two of their recent jury trials and honed in on the following.

  • To settle or not to settle? Dependent upon the facts of the case, it may be beneficial to take the case to trial. Plaintiff attorneys have to prove two pieces to a jury trial- negligence and causation (negligence caused injury). Defense attorneys often use causation to the advantage of the provider- just because there may have been negligence does not mean it caused the damages. In addition, willingness to try the case may aid in mediation and bringing down value of a case. Work closely with your insurance carrier and defense attorney when deciding to settle or bring to trial.
  • Plaintiff attorneys will focus on the training of new employees in particular. It is vital that organizations maintain good documentation to support training that employees receive upon hire and throughout the course of employment.
  • Document, Document, Document!– If it is not documented it didn’t happen, but if it is documented, it did happen. Consider making it a practice to document positive interactions with residents/clients (good mood, making jokes, attending activities, etc.).
  • Organizations are better served in litigation when policies and procedures are not overly detailed or intricate. Set realistic practices, and basic is better when it comes to written policies and procedures.
  • Utilize risk agreements as part of the education process with residents/clients and representatives if a potential concern may be inevitable- frequent falls, risky choices made by resident client/etc.
  • Use the admission agreement to incorporate risk discussions and acknowledgement with residents/clients and representatives. For example, consider adding to the admission agreement that the party understands that the resident/client will not be receiving one-on-one care or attention at all times.
  • Utilizing demonstrations during jury trials can be very beneficial to educate the jury- i.e. how certain tasks are performed.

Legal Challenges and Risk Management Considerations with Admissions and Discharges

Tom Shorter of Husch Blackwell and Marleah Keuler of M3 Insurance explored with the group how the admission and discharge of a resident/client to and from an organization are heightened times of potential risk, and shared strategies to aid in mitigation.

  • Admissions agreements are consistently referred to in the event of litigation. Consider reviewing your organization’s admission agreement and incorporating language you want residents/clients and their representatives to sign off on, such as reasons for and of the process of involuntary discharge. Consider reviewing admission agreements annually to update the language to account for newly identified challenges with admission and discharges.
  • The decision of whether or not to admit a resident/client is the first line of defense. Consider developing a list of what type of care your community is able to accept and not accept to be used both internally and externally. This guides admission staff around your internal parameters, and can be helpful in discussions with hospitals, Managed Care Organizations, and residents/clients and their representatives.
  • The readmission of a resident/client from a hospital may indicate an increase level of care, so consider reviewing your organization’s process for assessing readmissions to ensure the individual remains appropriate for your setting.
  • Clear communication with residents/clients and their representatives regarding what services can and cannot be provided, changes in resident/client needs throughout the stay, and if the need for discharge is coming is crucial. Receiving an involuntary discharge notice should not be a surprise to a resident/client and their family.
  • Documentation to justify the involuntary discharge of the resident/client will be needed. Ensure the documentation embodies the increase in care level and the communication had with family and providers. It is important when doing this, however, to not include privileged quality assurance or incident investigation material in the medical record.
  • Develop an organizational template for the involuntary discharge notice that meets individual setting requirements (SNF, CBRF) per regulation and statutes to use in the event it is needed.
  • Develop relationships with community partners in varying levels of care to establish a list of organizations willing to accept residents/clients that may need to be discharged for higher levels of care.
  • The process of involuntary discharge in the event of a challenging resident/client or family situation can be a frustrating and a high-risk situation, so consider working with internal or external legal counsel in these situations.

Carrier Perspectives of Litigation

Scott Banken of West Bend Mutual Insurance shed light on the current litigation environment.

  • Social inflation is contributing to rising costs of claims due to increased litigation, broader definitions of liability, more plaintiff- friendly legal decisions, and larger compensatory jury awards. The anti-corporate sentiment and economic disparity of the general public is also playing into this.
  • Three options for resolution- dismissed by motion, settled, or verdict. Note that even if an organization feels there was no negligence or wrongdoing, the insurance carrier and defense attorney push for settlement if they cannot successfully defend you with the facts of the case. Insurance carriers may be a bit more conservative than attorneys and push for settlement versus bringing the case to trial.
  • A key strategy of the carrier is to defend against “Reptile Theory” often used by plaintiff attorneys. Plaintiff attorneys attempt to appeal to jurors’ “reptile” brain and demonstrate the immediate danger posed by the defendants action or inaction, and that the jurors have the duty to protect others in the community from danger. It is important to recognize when this tactic is being used so defendants can prepare for potential leading questions.
  • Strategies in jury trials to mitigate a large verdict:
    • If the organization is liable, accept responsibility upfront to establish credibility
    • Be the most reasonable party in the room
    • Humanize the defendant
    • Realistic but empathetic approach to arguing pain and suffering and the value of a life

Personnel Files and Employment Decisions Impact in Civil Litigation

Tom O’Day of Husch Blackwell provided many insightful nuggets on the maintenance of personnel files and how employment records can play into litigation.

  • While there is no federal law requiring personnel files, WI Statute 103.13  and MN Sec. 181.961 states what personnel documents are to be maintained for employee access in the personnel file and confidential medical file. This includes personnel documents such as employee’s qualifications for employment, promotion, transfer, compensation, termination or other disciplinary action, and medical records. Personnel records have different retention requirements, so ensure you abide by a record retention schedule accounting for the different types of files.
  • Personnel files are accessible to plaintiff attorneys during the litigation process are not considered privileged information. This means that any investigative material (that may otherwise be privileged) which made its way into the personnel file would be accessible to the plaintiff attorney. Consider implementing a checklist when pulling an employee personnel file so there is consistency and practice and you are only pulling what is to be considered part of the personnel file.
  • In the discovery process, if a personnel document may tie into a privacy matter, you may be able to redact or withhold the information. When releasing a file, it is recommended to redact personal information– medical conditions, social security numbers, etc.
  • Be cautious of “shadow” or “soft” personnel files. Managers often keep certain records such as emails or notes on employees in a file outside the formal personnel file. It is recommended to put parameters around what is kept in “shadow” files and how long the information is retained.
  • Justification summaries to support corrective action are likely considered a personnel file document. Document justification summaries in a manner to support the corrective action and not provide details that may compromise privileged investigative information. In addition, if there are documented performance issues in the personnel file and nothing was done to address them, this could help support a negligence case.
  • Key documentation that is beneficial for future litigation include orientation training documents– (ensure complete and accurate), records of annually required and as needed training and education, and accolades from residents and family members (could be helpful in liability but hurtful in employment action)
  • From an employment practices perspective, arbitration agreements for employment are worth considering as a risk transfer strategy for your organization. If an organization has over 250 employees, there is an exclusion the insurance policy for wage and hour claims, so that risk cannot be transferred to insurance. Arbitration agreements make pursuing claims against an employer less appetizing for plaintiff attorneys. They often pursue class action suits for wage and hour claims, which they would not be able to do in the case of arbitration agreements.

Common Themes of the Day

The Caring Heart– Do not underestimate the importance of having empathy and strong relationships with residents/clients and their families. Build those positive relationships from the start so if something negative happens, you have a rapport with those individuals. When appropriate, apologize for their experience- WI I’m Sorry Statute. How a person is made to feel often means more than the facts of what happened. The involved resident/client and their interested parties’ perception of indifference or lack of communication from the staff or organization is a significant factor in influencing whether an organization can expect future litigation or a complaint visit from the state department.  Consider reviewing your customer service training and grievance procedures to ensure a solid process (and person) is in place to be the “caring heart” communicating to the resident/client and their family.

Turn Your Grievance Program Into a Customer Service Program

Documentation Practices– It’s no surprise that the quality and completeness of documentation (or lack thereof) plays a huge part in your organization’s ability to be “defensible” in the event of litigation. Consider reviewing your internal ongoing monitoring process for various forms of documentation, as well training employees receive on documentation hygiene. 

Documentation Dos and Don’ts

Employee Records– Personnel files can be a vulnerability in the event of litigation. Consider reviewing with your supervisory and HR teams what information should and should not be included in a disciplinary action (no detailed investigative material). Develop and abide by a record retention schedule, and identify what types of employee records are to be stored and where (personnel file vs. medical file vs. confidential legal file).

Risk Management Considerations for Record Retention & Release

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