Governing Body Personal Exposure
By:
David Barmak, JD CEO
What is my personal exposure when serving on a nursing home’s Governing Body?
An excellent question! You likely hear many things about personal exposure: “You’re responsible for everything that happens”; “All operational programs lead to you”; and “Professional liability attorneys are gunning for you, personally”. Scary! Time to separate fact from fiction.
The courts are split on personal exposure based upon allegations of negligence.
The Arkansas Supreme Court held that conditions of participation are limited as a rule for nursing homes to qualify for participation in Medicare and Medicaid, and not to create a duty in tort for Governing Bodies.
A United States District Court found that conditions of participation create neither a private right of action nor a legal duty for a Governing Body member personally.
In contrast, a Florida Appeals Court ruled a Governing Body’s members may be personally liable to a resident. In this case, the Governing Body failed to address issues that allegedly led to harming the resident. This decision supports the potential creation of a duty to a resident, an essential element supporting a negligence claim.
A second United States District Court held that personal liability could follow operating a nursing home on a day-to-day basis.
To minimize a Governing Body member’s personal liability, it is essential to adhere to federal and state regulations, including only proactive oversight of operations and management, and especially ensuring an effective compliance and ethics program.
