Transcript Trends, dangers, and best practices

EVENT MANAGEMENT, DOCUMENTATION, AND DISCLOSURE:
TRENDS, DANGERS, AND BEST PRACTICES
Karen E. “Missy” Minehan, Esq.
Disclaimer
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Medical Malpractice Filings Are Down 46.5%
(2002-2014)
http://www.pacourts.us/news-and-statistics/research-and-statistics/medical-malpractice-statistics
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Civil Lawsuits Against Long-Term Care (LTC)
Providers Are Up
“Long Term Care Litigation Sees Surge.” Legal Intelligencer, September 10, 2013; Stevenson, DG, and
Studdert, DM. “The Rise of Nursing Home Litigation: Findings from a National Survey of Attorneys.”
Health Affairs. 22(2):219-229, 2003.
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Severity Of Jury Verdicts Against LTC Providers
Is Up
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Proliferation Of Plaintiff’s Law Firms Devoted To
LTC Litigation
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And there are more…..
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Arbitration Agreements Limited By The Courts
• Wrongful Death and Survival Actions
– Wrongful death: POA/legal representative cannot waive the
statutory wrongful death beneficiaries’ (spouse, parents, children)
right to assert a wrongful death claim via an arbitration agreement.
Pisano v. Extendicare Homes, 77 A.3d 651, 661-62 (Pa. Super. 2013).
– Survival: Trial courts are split about whether the POA/legal
representative can waive the companion survival claim. See Lipshutz,
2013 WL 7020480 at *4; but see Hetrick v. Manorcare of Carlisle, Pa.,
No. 117979, 2014 WL 8106734 (C.C.P. Cumb. May 30, 2014).
• Other common issues that limit arbitration clauses:
– Does the signatory have legal authority to sign the Admissions
Agreement?
– Was admission to the facility made contingent on accepting the
arbitration clause?
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Corporate Negligence Extended To LTC And
Management Companies….Stay Tuned
• Skilled nursing home AND its management company could
be subject to potential direct/corporate liability for
negligence. Scampone v. Grane Healthcare, 57 A.3d 582 (Pa.
2012)
• Impacts:
– Scope of discovery
– Punitive damages analysis (Are the goals of management
company or owner consistent with the goals of clinicians?)
– Sources of potential funds (e.g., insurance v. private resources)
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What Can You Do?
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Event Management, Documentation, and
Disclosure Platform
• What?
– A process for investigating, documenting, and reporting
adverse events based upon established procedures
• Why?
– Supports the resident/POA* (better customer service)
– Allows a facility to fast-track claims and reduce litigation costs
and indemnity
– Provides an opportunity to mitigate clinical, educational, and
systemic exposure to avoid future events
* “POA” = relatives, POA, and/or legal representative
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What Happens PRIOR To An Event MATTERS!
• Build a trusting, solid, and positive relationship among the
resident/POA, the healthcare team, and the administration
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But … what do we do when despite our best
efforts, “an event” happens?
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What Is “an event”?
• A near miss is an unplanned event that occurs during
treatment of a resident that is related to an error or problem
in treatment, but that DOES NOT result in measurable harm
to the resident
• An adverse event is an unplanned event that occurs during
health care that DOES cause harm to the resident
– Unrelated to provider error like a complication of a medication
– Can be the result of provider error or a breach in the standard
of care
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Overview: Management, Documentation, and
Disclosure Of Events
1. Ensure resident safety
2. Preserve evidence
3. Document the event in the medical record
4. Prepare an event report (if appropriate)
5. Report the event to insurer (if appropriate)
6. Report the event to the government (if required)
7. Properly communicate with resident/POA
8. Consider reporting the event to the QAPI committee
9. Follow-up on QAPI recommendations
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1. Ensure Resident Safety
• Provide necessary medical care to stabilize the resident
• Remove all unsafe devices, equipment, and medications to
avoid further risk to this resident or others
• Notify the attending physician and obtain additional orders,
if necessary
• Educate staff on any change in care plan or new orders
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2. Preserve Evidence
• Secure physical evidence, including:
– Medical devices and equipment
– Medications, containers, package labels, and inserts
– IV bags, tubing, and syringes
– Supply containers and packaging
– Lab and pathology specimens
– Any other physical evidence that might be of use in an investigation
• Preserve electronic data
– Consult with IT or outside contractors to preserve electronic data (e.g.,
call bell history, answering service messages)
– Obtain copy of electronically stored data if the information may be
overwritten (e.g., surveillance video)
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What NOT to do When Preserving Evidence
• Do not tamper with, clean, or otherwise modify physical
evidence
• Do not take photographs of physical location of the event or
wounds (unless advised to do so by insurer or counsel)
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3. Document The Event In The Medical Record:
Rules Of Thumb
• “Contemporaneous or as soon as practicable.” 40 P.S. Section 511
(MCARE Act)
• Factual observations ONLY
• Questions posed to witness and the answers/statements given
– Document answers/statements in “quotations”
• When the event happened (if known) or when event recognized
by staff
• Resident assessment, treatment, and plan of care
• Discussion with resident/POA (more on that later)
– Date/time/manner of discussion (e.g., meeting, telephone, email)
– Who notified and relationship to resident
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What NOT To Do When Documenting An Event
In The Medical Record
• Do not document whether or not an event report was
prepared
• Do not document whether the DOH, Office of Aging, or DHS
was notified
• Do not speculate about cause of event. “Resident fell from
wheelchair, bed, toilet ... trying to go to the bathroom
…reaching for call bell … climbing into wheelchair, etc. ”
• Do not cast blame
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4. Prepare An Event Report: Rules Of Thumb
• Factual observations ONLY
• Questions posed to witness and the answers/statements
given
– Document witness answers/statements in “quotations”
• When the event happened (if known) or when event
recognized by staff
• Resident assessment and treatment
• Discussion with resident/POA
– Date/time/manner of discussion (e.g., meeting, telephone,
email)
– Who notified and relationship to resident/POA
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What NOT To Include In The Event Report
• Do not speculate about cause of the event
• Do not cast blame
• Do not include follow-up, quality assurance process or
recommendations, or subsequent remedial measures in
event report
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5. Report The Event To The Insurer
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Are Event Reports Confidential?????
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Event Reports Are (Generally) NOT Protected,
Confidential, or Privileged
• Event report is generally DISCOVERABLE in civil litigation.
See, e.g., Morgan v. Community Medical Center Healthcare
System, No. 2008-CV-4859 (Lacka. Co. June 14, 2011).
• Event report is DISCOVERABLE by DOH surveyors. 35 P.S.
section 448.813.
Therefore, assume that the event report will have to be
produced in
litigation or during a DOH survey or investigation
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6. Mandatory Reporting: Does the
Commonwealth Need Notice Of The Event?
• Department of Health – 28 Pa. Code §§ 51.3 (Notification);
201.14 (Responsibility of licensee); 211.1 (Reportable
diseases)
• Department of Human Services – 55 Pa. Code § 2600.16
(Personal Care Home-Reportable incidents and conditions);
55 Pa. Code § 2800.16 (Assisted Living Residence –
Reportable incidents and conditions)
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Mandatory Reporting Of Alleged Abuse
• The Older Adults Protective Services Act
(OAPSA) mandates reporting of suspected
abuse. 35 P.S. §§ 10225.701; 702.
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PB-22 Form
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7. Properly communicate With Resident/POA
• Benefits of Disclosure
– Puts the resident/POA first
– Creates trust
– Fosters peace of mind and positive culture in staff
– Reduces liability risk
– The right thing to do
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Communication: Best Practices
• Identify primary legal representative/family contact from
medical record or admissions paperwork
• Communicate as soon as possible, but certainly within
24 hours of discovery of an event
• Initial communication should involve a caregiver or
administrator with an established relationship of trust with
resident/POA
• Initial communications may be limited to:
– General information
– Description of the care rendered
– Assurance that the event is being investigated
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Communication: Best Practices (cont’d)
– Identify which staff member will communicate
with the resident/POA
– Confirm who will be the POA/family contact
– Be factual – avoid speculation, blame, or opinion
– Speak simply and slowly and avoid medical jargon
– Empathy - Offer “benevolent gestures” (more on that later)
– Assure that resident is receiving ongoing care
– Identify the steps the staff will take to avoid similar events in
the future
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Communication: Best Practices (cont’d)
– Invite questions and listen
– Establish timeline for follow-up discussions
– Include the attending physician in all important
decisions/communications – if possible
– If the resident requires ongoing care, advise all caregivers of
the designated staff communicator
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Closing the Initial Meeting
• Stay as long as is needed or wanted (pay now or pay later)
• Check to make sure resident/POA understands the key points
(reiterate)
• Set timeframe for follow-up
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Then … Implement the Follow-Up Plan
• Investigate and update the resident/POA consistent with the
follow-up plan
• Update resident/POA if previously agreed-upon timeline
must be extended
• Be accessible
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Benevolent Gesture Medical Professional
Liability Act
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Benevolent Gesture Medical Professional
Liability Act (cont’d)
• Why? To encourage frank discussions between healthcare
providers and resident/POA by encouraging “benevolent
gestures”
• When? Applies to actions after December 23, 2013
• Who?
– By - physicians, hospitals, nursing homes, assisted living
facilities, primary health care centers, personal care homes,
birth centers, certified nurse midwives, and
officers/employees, agents who are acting in course and scope
of employment
– To  patient/resident, patient/resident’s family,
patient/resident’s designated healthcare representative
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Benevolent Gesture Medical Professional
Liability Act (cont’d)
• Benevolent gesture must
– Concern the resident's discomfort, pain, suffering, injury or
death, regardless of the cause
– Result from any treatment, consultation, care or service or
omission of treatment, consultation, care or service
– Be provided by the health care provider, assisted living
residence, or its employees, agents or contractors
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Benevolent Gesture Medical Professional
Liability Act (cont’d)
• Limitations:
– Benevolent gesture must be made prior to the commencement
of a medical professional liability action, administrative action,
mediation, or arbitration
– Benevolent gesture can be admitted as evidence, but not as
evidence of liability
– Admissions of liability or responsibility are not protected
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No Interpreting Case Law Yet
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The Benevolent Gesture: Do’s and Don’ts
• Do’s
– Be empathetic - “I’m sorry. I feel so badly about what
happened.”
– Hugs and sympathy cards are OK
– Offer benevolent gesture asap after event
• Don’ts
– Accept responsibility - “I’m sorry. We made an error.”
– Blame others (including the resident!)
– Complain about staffing, work conditions, bosses, co-workers
– Forget about non-verbal cues and body language
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Verbal/Nonverbal Communications
55-70%
60
50
25-35%
40
30
20
10
0
Tone of
7-15% Voice
Body
Language
Words
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Examples Of Empathy
• “I am sorry for your loss.”
• “This is obviously a very difficult time for you. I am sorry
that your mother experienced this problem. Let me explain
what we are doing for your mother now and going
forward.”
• “I am so sorry that you have had this complication from the
fall you had … It is clearly not what we both had hoped for.”
•
“While this is not common overall, it unfortunately does
happen sometimes despite our best efforts … You may
recall that we discussed this as a possibility, during your
recovery from the stroke.”
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Examples Of Admissions
• “I thought your mother was a good candidate for this
medication. Now, well...perhaps more conservative therapy
was warranted...I don’t know...”
• “Well, of course, knowing what I do now, I would not have
made the decision to answer the other resident’s call bell.”
• “I did not go to medical school to learn to hurt people...I am
so sorry.”
• “The nurses here are from an agency and are always
making mistakes like this.”
• “This always happens to residents being cared for by this
nursing assistant.”
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In Sum, Always Express Empathy As Soon As
Possible
• A heartfelt showing of empathy helps to make a bad
situation better 100% of the time
• Prevents resident/POA misperceptions
• Fosters trust between resident/POA and staff
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8. Consider Reporting the Event to the QAPI
Committee
• Follow internal policies and procedures
• Avoid ad hoc interviews of staff unless within the QAPI
review process or by counsel
• Do not disclose internal documentation or results of QAPI to
individuals outside the process (including DOH)
• Mark documents generated by QAPI review as “Confidential
Peer Review…”
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9. Follow-Up On QAPI Recommendations
• Appropriate follow-up demonstrates real concern and
interest in preventing future events
• Subsequent remedial measures are generally inadmissible at
trial. Pa.R.E 407.
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Reliable
Systems
FOLLOW –UP
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Karen E. “Missy” Minehan, Esq.
717-368-7620
[email protected]
STEVENS & LEE
17 North Second Street
16th Floor
Harrisburg, PA 17101
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