Talking May Be the Best Preventative Medicine for Skilled Nursing Facilities
By:
David S. Barmak, JD CEO
Many lawsuits are the result of the inability or unwillingness of skilled nursing facility staff to communicate with a resident and/or family when an incident occurs. Very often the staff member is reluctant or afraid to discuss the whys and hows of a particular situation with the resident but most especially with the family. The reluctance on the part of the staff in conjunction with the time elapsed from the occurrence relates to the appearance of guilt on the part of the facility, and the more likely the family is to consult the Department of Health and/or an attorney.
The attorney will then retain an expert witness, usually a physician, in order to support a claim for negligence or malpractice. Even though there may not be enough to sustain a real case of negligence, the attorneys may press forward with a lawsuit with minimal support, hopeful that during the discovery process stronger support for the negligence claim will be uncovered. In addition, the opportunity to shift attorneys’ fees to the skilled nursing home is a potential if the resident’s rights can be proven to have been violated in a state that “fee shifts.” Is this a fair and appropriate modus operandi? Perhaps not, but it is how many professional malpractice attorneys proceed.
Obviously, you cannot avoid being sued. What you can avoid, however, are lawsuits that have less merit but are filed primarily because of the lack of timely and appropriate communication between the resident, family, and facility staff. The following are examples:
- A resident is admitted to the facility with stage I or stage II pressure ulcers and/or perineal excoriations that are small in size. It is imperative that the staff inform the resident and/or family as soon as possible that these wounds are present on admission and may get worse before they get better.
- The resident is admitted or returns to the facility with a stage III or IV pressure ulcer that was either not there prior to discharge, developed, or became worse at the hospital. It is imperative that the staff inform the resident and/or family regarding the existence of the wound and the stage, along with interventions that are being implemented, as the hospital may be discharging patients with “stage II” wounds that are improperly staged. CMS guidelines prohibit reimbursement to hospitals for avoidable hospital-acquired wounds above stage II. If the family thinks that the wound was stage II at the time of discharge and find out that it is stage III days later, the assumption will be that the facility is at fault.
- The resident is assessed as a high fall risk and multiple interventions are in place; however, the resident continues to fall. It is imperative that the staff request a family meeting as soon as possible to discuss the situation with the family and involve them as much as possible in the care planning process.
If a skilled nursing facility can prevent even a small percentage of these types of cases from being filed due to poor communication and a perceived poor bedside manner on the part of the staff, the facility’s professional liability premiums will be less, and the facility staff may have more time to do what they were trained to do—provide healthcare. Depositions and court appearances require huge amounts of staff’s time.
Most preliminary professional liability inquiries result from some type of incident during the process of providing care. If the resident/family understands that there may be some medical reason for the resident’s condition, such as a wound, fall, or continued pain, they may be less likely to initiate a lawsuit. If a nurse or interdisciplinary team member sits down with the resident/family after an incident to fully explain what has occurred, this may be the first step in creating an amicable dialogue. What is important, however, is the continuation of this dialogue for weeks or months following the occurrence. A few minutes of heartfelt discussion may avoid what can easily become a snowball rolling downhill and gathering momentum and growing in size.
Of course, what was said in the previous paragraphs was not meant to convey a prescription for preventing all professional liability lawsuits. As with most things in society today, perception is sometimes more important than reality. If a resident perceives that the facility is caring, understanding, and communicative, then the resident/family may not look beyond this point. It is only when residents/families truly believe that the staff has not been honest or is withholding information, that they begin to think other things, which may eventually lead to investigation as to whether the facility has committed negligence.
