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Lawyers Have Gone Fishing

October 1, 2004
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Be "the one that got away" from these litigious anglers by Ric Henry, CPHRM, CNHA, FACHCA
BY RIC HENRY, CPHRM, CNHA, FACHCA


"Gone fishing"-these words should be posted on the doors of many plaintiffs' attorneys across the country. For almost a decade, there's been a disturbing rise in the number of litigation firms actively seeking and soliciting evidence that can be used to sue nursing facilities.

Law firms deride so-called "expectations-management" programs in place at many long-term care facilities, asserting that the intent of such programs is to lower the families' expectations about the care their loved ones will receive. By doing so, lawyers claim that facilities are then free to lower their standards of care. This is the argument they use to hook families into suing nursing facilities.

Within the long-term care industry, we prefer to call this educational process realistic expectations management. Facilities use this approach to educate families about the realities of life in nursing facilities and to open the lines of communication between provider, resident, and family in hopes of improving the caregiving process.

The intent of realistic expectations management is to help residents and their families anticipate situations that might otherwise take them by surprise. For example, if a resident has been prescribed blood-thinning medication, we would recommend describing to family members the expected bruising that will likely occur. In the past, such unexpected situations might have led families to seek legal recourse, but consumers educated in expectations have a better understanding of their rights and responsibilities and might be less inclined to sue. Nursing facilities also find education helpful in establishing good relationships with residents and their families. This is why realistic expectations management has taken center stage as nursing facilities fend off lawsuits.

Nursing facility litigation has become an industry in itself. Legal seminars on how to effectively sue nursing facilities and win have become popular in recent years. Newsletters designed specifically for plaintiffs' attorneys offer strategies based on prior cases alleging neglect, abuse, wrongful death, and other offenses against residents in nursing facilities and assisted living facilities.

Many Web sites purport to be resource centers educating families on long-term care decisions when, in fact, these sites are sponsored by law firms specializing in nursing facility lawsuits. Billboards and newspaper ads recruit potential plaintiffs. Television stations continue to air commercials featuring attorneys who urge viewers to "call now if your loved one is in a nursing home." These tactic-driven attorneys don't need evidence-their strategy is to get the client first and then go fishing for reasons to sue.

One troubling result of these litigious fishing expeditions is a huge increase in liability insurance costs for long-term care facilities. Facilities are forced either to pay dramatically higher rates or to drop professional liability insurance altogether. The latter option, "going bare," is a risky endeavor. It's likely to drive away doctors, medical directors, and administrators, and these facilities may find it problematic to get insurance in the future.

Elizabeth Summy, executive director of the American Society for Healthcare Risk Management, (www.ASHRM.org), believes the increase in litigation has eroded the relationship between providers and residents, drowning out the good work that facilities do. "More than ever, risk managers are working to improve processes for resident care and safety," Summy contends. "They know that clear communication creates safer systems of care for providers, residents, and families."

In 1995, plaintiffs' attorneys looking for reasons to sue facilities got some unintentional help. The federal Centers for Medicare & Medicaid Services, then the Health Care Financing Administration, implemented a new process to evaluate nursing facility care: a scope and severity grid, used to measure nursing facility deficiencies. This rating system put on paper exactly what lawyers needed to sue nursing facilities. Using terms such as "actual harm," the system provided plaintiffs' attorneys with incendiary language and a paper trail that they can use in court.

Going back to realistic expectations, providers are not able to give each resident 24-hour, one-on-one attention, care, and monitoring. Facilities that explain such realities of long-term care can establish better relationships with patients and their families, and they can reduce, to some degree, the possibility of frivolous litigation.

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