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Senior care facilities: Top 10 tips to avoid litigation

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This may sound strange coming from an attorney, but President Abraham Lincoln said it best in 1850: “Discourage litigation. There will still be business enough.”

Why do I lean on Lincoln as I practice law? As a former geriatric nurse practitioner, and co-author of “Case Studies in Geriatric Medicine,” I have seen what happens to patients, families, doctors and institutions when a lawsuit is threatened. And as a health care attorney, I am passionate about helping nursing homes, assisted livings facilities and adult family homes to provide quality care to their residents.

Why are nursing homes being sued? Common reasons include falls and fall-related injuries, trouble with swallowing and feeding tubes, physical and chemical restraints, wandering, burns and scalding, malnutrition, dehydration, pressure sores, medication errors and sexual abuse.

Remember that if your facility is sued and the case goes to a jury, it is very likely that on that jury will be at least one if not several people who have a close relative in a senior care facility, or who know someone who does or can see themselves in such a facility in the future.

If you claim as a defense that the facility was short staffed or procedures and equipment were not up to date, be aware that this may cause the jury to think that you were more motivated by profit than high quality care and they could be more likely to award significant damages.

So, here are my Top 10 tips to keep your senior care facility out of court:

1.Staff adequately. No family member wants to hear that their relative didn’t get proper care because there weren’t enough nursing assistants on the night shift when their relative fell out of bed and broke their hip.

2. Compensate fairly. Jonathan Rosenfeld writes in Hutchinson News Online that most nursing homes have a turnover rate that exceeds 100 percent. It can be an impossible task to keep skilled and caring staff if they aren’t paid fairly, benefits included. Current and former staff members who testify as to low pay and poor working conditions work against the senior facility owner in court.

3.Follow your policies and procedures. Take the time and expense to be sure that employees are trained and are following the policies and procedures that you and the state and federal government require. Nothing is easier for an attorney to prove than that an employee failed to follow your facility’s procedures.

4.Follow the care plans. Nursing homes and other senior care facilities are required to have personal care plans based upon a nursing and medical assessment of the patient’s needs. Upon receiving a complaint from a family member whose relative has fallen, a state surveyor can easily find out if the fall precautions that were listed in the care plan were followed. Not only can that lead to a citation and a fine, but it can also form the basis for a lawsuit.

5.Follow the doctor’s orders. All nursing home residents must have a doctor’s orders for medication and treatments upon admission. Failure to follow the orders can put the patient in danger and leave the facility open to a lawsuit. Implement a regular system of chart review, preferably before the end of each shift to ensure that no orders are missed.

6.Communicate with the patient and family. Staff may take for granted that family members know the system — how a nursing home works and what to expect. Remember that this family and this patient may never have experienced this situation before and be sure to treat every patient and every encounter as high risk. Have staff consistently identify themselves, their role and get the patient’s permission before assisting them.

7.Document, document, document. Train your staff to document in a timely, appropriate manner. A plaintiff’s attorney will have a field day if you can’t prove the resident got the medication and got it on time.

8.Be respectful. To a listening family member, nothing says “we really don’t care” like talking about the resident by the room number (“Please get me the chart for 103.”)

9.Visit early and often. Take the time to sit in the hallway or dining room. Be there for change of shift. Are call lights being answered? What do you see, hear and smell? Pop in on the off shifts, not just to make a surprise inspection, but to get to know and offer support to the staff who work those shifts. They will feel appreciated and work harder to deliver quality care.

10.Ask for help. It is certainly not easy to run a successful senior care facility. Make sure you have competent staff you can depend on as well as excellent advisors, attorneys, tax professionals and others who can partner with you to deliver the quality care your residents need.

Christina M. Davitt is of counsel to Ogden Murphy Wallace P.L.L.C. Her practice focuses on health law, elder law including estate planning, guardianship and probate and business matters.