Stay Out of Court

Every assisted living and residential care provider has a very real fear of being sued.  Whether it comes from family members who are upset over their mother falling in your facility, or a staff member who feels he or she has been wrongly terminated, the threat of litigation is very real.  But don’t be mislead to think that lawsuits are entirely the result of circumstances beyond your control; there are steps you can take to help stay out of court. 

This was the topic of an education session at the recent Assisted Living Federation of America (ALFA) conference and expo in Orlando, Florida.  A respected panel of industry attorneys, including Joel Goldman (Hanson Bridgett), Michael Crowe (Brown McCarroll LLP), and Kirstin Sumner (Brookdale Senior Living) led the session, entitled Litigation: The Top Seven Ways to Stay Out of Court, which took a look at proactive measures providers can take to help control risk and avoid lawsuits.  Needless to say, no solution is a guarantee, but here is a recap of their recommendations:

1. Watch the Wording in Your Marketing Materials
Create realistic expectations and stick to the facts.  Don’t be misleading when describing your services, and be very clear about rates and possible level of care increases.  Also, be cautious with the use of promotions, and have a legal review to ensure all documents have the necessary “legalese” included.

2. Don’t Be Mislead By Negotiated Risk Agreements
The panel of attorneys was very clear in stressing that these increasingly common documents are not a foolproof prevention against lawsuits.  And remember, in many states (such as California) they are not allowed.

3. Follow the Fair Housing Laws
Your compliance with Fair Housing requirements goes beyond the fine print in your brochures.  For example, your highest-acuity resident can become the new legal standard for the conditions you will/must allow in the future.  In other words, if you obtain a licensing exception to retain one resident with a g-tube, you may be required to do that for other residents in the future.  This one is definitely a tricky area; be sure to speak with your attorney.

4. Dot Your “I’s” and Cross Your “T’s” During Licensing Surveys
The main issue pointed out here had to do with reports and plans of correction following a licensing inspection.  Be very careful what you agree to in a plan of correction; they are public documents.  One suggestion from the attorneys was to always include the statement “this is not an admission of liability” in any written plan of correction.

5. Who Has the Legal Authority to Make Decisions?
All too often providers assume that the son/daughter/granddaughter/etc that helped your resident move into your community has the legal authority to make medical and/or financial decisions for the resident.  Often this is not the case.  They may not, for example, be authorized to view a resident’s medical record, they may not be authorized to access the resident’s bank account, and they may not be authorized to decide where the resident will or won’t live.  Educate yourself on your state laws regarding legal decision-making capacity, surrogate decision making, and powers of attorney.

6. Beware of the Challenging Family Member
Every provider has had his or her fair share of challenging family members.  The key to success is not to leave in fear of them and avoid them, but rather stay in constant communication with them.  This is often the family member you want to stay in touch with more than any other.

7. House Rules Can Help with Discharges and Transfers
If your house rules are clear and address things like safety and conduct, they can sometimes be an ally during discharge and transfer decision processes.

As we said, there is nothing you can do to guarantee you will never face a lawsuit, but these steps are good start.

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