How Senior Living Providers Can Defend Against Rising Threat of Litigation

Last week, a jury in Van Nuys, California awarded plaintiffs $5.5 million in a suit they brought against AvantGarde Senior Living for negligence — the largest verdict in that city’s history.

The facts in that case are troubling, involving an 89-year-old resident who broke her neck in a fall. But providers throughout the industry may also be shaken by the size of the monetary award, given the current litigation landscape around the country.

The industry faces rising insurance costs due to an elevated risk environment. The growing number of lawsuits and claims have some insurance carriers exiting the senior care market, and providers are facing rising costs and growing anxiety over the possibility of lawsuits..

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While quality providers are striving every day to keep residents safe, there are also a number of operational best practices they should have in place to manage their risk profile and reduce the probability of litigation, legal professionals told Senior Housing News.

Managing expectations

One aspect of minimizing risk management involves bridging the gap between what the level of care a family expects from a facility and the actual level of care their parent needs, Polsinelli Health Care Practice Chair Matt Murer told Senior Housing News.

It’s amazing the number of administrators who are not clued into a developing situation in the moment that turned into a claim, when if they knew they would have intervened sooner.

Wilson Getty Founding Partner William Wilson

Polsinelli talks to its clients frequently about understanding that families turn to senior housing as a solution for a condition — be it falls, cognitive decline or a general downturn in health and mobility — that will only get worse without constant care. Expectation management will reduce the possibility of an event that may lead to a liability claim and/or litigation.

“They look to senior care as a solution [to a problem]. The reality is, especially in memory care, these conditions are progressive. Admitting someone to a facility will only slow the condition that brought them there in the first place,” Murer said.

An internal analysis of claims from insurance carrier CNA revealed a high propensity of liability claims filed were related to incidents during a resident’s first two weeks in a facility, CNA Insurance Vice President, Industry Leader for Aging Services Blaine Thomas told SHN.

This is the time period where residents and their families are becoming acclimated to a community’s staff, and that staff is getting to know a resident’s timetables for meals, exercise and activities, and medications, Adelman Law Firm founder Rebecca Adelman told SHN.

In addition to addressing clinical conditions, providers use this move-in period to establish relationships with new residents and their families about the level of care they can — and more importantly, cannot — provide.

“[Providers] need to establish [care] expectations upon admission. If not, the seeds of [unrealistic] expectations are planted and when they are not met — coupled with an incident — [it] results in a higher risk for litigation,” she said.

[Providers] need to understand that when they receive a records request, the plaintiff’s lawyer understands why the provider might be liable. We don’t want to play catch-up.

Polsinelli Health Care Practice Group Chairman Matt Murer

Managing the move-in period begins with a community’s executive team. Ideally, executive directors and other senior staff should introduce themselves to new residents and families within 48 hours of a move-in, Wilson Getty Founding Partner William Wilson told SHN. This assures the families, particularly, that the community is on top of things and will respond promptly if an event happens.

“There is something about [an executive director] sharing a cell phone number [with families] that lets them know you’re always there. It may not prevent a claim, but [you] are establishing a reputation of quick response and refuting a reputation for neglect,” he said.

Often, providers find themselves managing around a family’s expectations of what a facility can provide for their parents. Polsinelli’s best clients explain and telegraph what they see as continued progression of a resident’s condition to the families, and the services they have in place to address that, Murer told SHN.

Simple, effective procedures

Some senior living risk management professionals have warned that plaintiff attorneys are starting to share best practices for targeting vulnerable operators in markets favorable to litigation. But Stalwart Law attorney Brian Poulter, who represented the plaintiffs in the Van Nuys case, objects to this framing.

“These lawsuits are filed because these facilities violate the very laws put in place to protect the residents. That’s on the facilities, not the lawyers,” he said.

With this in mind, facility leaders must be on their game in terms of monitoring care quality and having effective policies and procedures in place.

“[Providers] need to create strong interdisciplinary leadership teams, ensuring care decisions are being made at bedside. They need to be aware of situations that give rise to claims. It’s amazing the number of administrators who are not clued into a developing situation in the moment that turned into a claim, when if they knew they would have intervened sooner,” Wilson said.

Providers can better insulate themselves against liability claims and litigation by reviewing the procedures they have in place for common events such as falls, elopements, abuse and neglect, skin irritations and injuries that occur during transfers. The best way to do that is to include front-line staff in reviewing these procedures, as they are the ones who are most familiar with a resident’s condition and if that condition is progressing.

“Providers need to have policies and procedures in place that they can comply with and are consistent with how they’re operating as a community,” Adelman said.

Enlisting front-line staff in reviewing procedures also ensures that the procedures are written simply and directly. Polsinelli advises its clients to talk to staff on the floor and ask them about the realities when delivering care to residents. If there is a gap between how care is actually provided versus procedure, seize on that discrepancy and rethink what is happening.

“When people are drafting policies, they feel longer language is better. Keep it simple and direct, where staff knows what to do when an event happens,” Murer said.

Be proactive, transparent with records requests

During liability claims and litigation, providers also frequently stumble in handling records requests from plaintiffs’ attorneys. Providers may panic, believing a claim or lawsuit is all but inevitable, and delay their response to the request, all but ensuring a claim or suit will be filed.

Providers need to enlist their legal counsel in all records requests, Wilson told SHN. Doing so ensures that the plaintiff will not receive an incomplete record, allows for a full vetting of those records and what they need to immediately investigate, can help identify a systemic problem that needs to be immediately addressed, and facilitate review of the records to ensure there are no Health Insurance Portability and Accountability Act (HIPAA) violations that can lead further litigation.

Providers need to have policies and procedures in place that they can comply with and are consistent with how they’re operating as a community.

Adelman Law Firm Founder Rebecca Adelman

Moreover, information that turns up when records are reviewed is protected under attorney-client privilege and cannot be turned over during discovery hearings, Murer told SHN.

“[Providers] need to understand that when they receive a records request, the plaintiff’s lawyer understands why the provider might be liable. We don’t want to play catch-up,” he said.

The transparency also involves keeping meticulous records of all incidents, as well as declines in a resident’s condition, including recommendations to transfer to a higher level of care.

“If you can document that, you can defend the cases all day long. Many clients don’t know how to document [events]. If they’re better with these, it can both prevent claims and enhance their ability to defend claims when one is filed,” Wilson said.

EDITOR’S NOTE: A previous version of this article stated that a jury found AvanteGarde Senior Living liable for reckless abuse and neglect. That language has been removed after email communication with AvanteGarde’s attorney that the jury verdict specifically stated that AvanteGarde was not reckless or grossly negligent.

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