Avoiding Punitive Damages

Transcription

1 Avoiding Punitive Damages Davis Frye Brad Smith Avoiding Punitive Damages Part 1: Avoid litigation in the first place. Part 2: Responding to litigation. 2 1

2 Avoiding Litigation 3 Avoiding Litigation 10. Conduct background checks 4 2

3 Conduct background checks 5 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile following discharge 6 3

4 Go the extra mile following discharge Have someone from the facility attend the visitation and/or the funeral if feasible. Have the caregivers who cared for the resident sign a card and send it to the family. Have a memorial service and invite families of former residents to celebrate the lives of their loved ones. Send the family a gift (flowers, Bible, or some other small memorial). 7 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile following discharge 8. Train your staff 8 4

5 Train your staff (customer relations) 9 Train your staff (social media) 10 5

6 Train your staff: making the point

7 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile following discharge 8. Train your staff 7. Set realistic expectations 13 Set realistic expectations Accurate advertising and marketing material Show family members video of nursing home care Communicate with family members regularly about the care provided Schedule a family meeting within the first week of residency to discuss anticipated outcome Tour the facility with the family Establish family support groups/meeting times Provide educational opportunities for family members 14 7

8 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile following discharge 8. Train your staff 7. Set realistic expectations 6. Use an arbitration agreement 15 Use an arbitration agreement 16 8

9 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile 8. Train your staff 7. Set realistic expectations 6. Use the arbitration agreement 5. Communicate with the resident and family 17 Communicate with residents and family Families sue when they do not understand That their family member s condition is deteriorating; The reason their family member s condition is deteriorating; and The possible outcomes of the resident s condition 18 9

10 Communicate: Quarterly Resident Care Questionnaire 19 Communicate: Quarterly Resident Care Questionnaire 20 10

11 ... no one would talk to me. 21 Communicate Plaintiff s Theme at Trial One of the most critical things about this case is that [the family] only found out about this wound when they saw her bed sheets being changed [at the hospital]. And I want to make sure you understand that. [The] nursing home did not tell these gentlemen what was really going on with their grandmother. They only found out once it got once she got hospitalized. And by then, it was too late. And by then, the dye was cast

12 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile 8. Train your staff 7. Set realistic expectations 6. Use the arbitration agreement 5. Communicate with the resident and family 4. If you have a policy, follow it 23 Follow your policies and procedures Policy and Procedure Manual 24 12

13 Follow your policies and procedures Plaintiff s Opening Statement In her last year of residency at the nursing home, the nursing home failed to follow their policies and procedures. What the evidence is going to show on November 14th, 2008, [the resident] began having swallowing problems. No vital signs were taken, no new care plan was done, no new assessments were done, no 24-hour report was done. 25 Follow your policies and procedures Plaintiff s Opening Statement The evidence is going to show on November 15th, the next day, 2008 that [the resident] is spitting up her food, not drinking, spitting out other medications. No vital signs were taken, no new assessment was done, no new care plan was done, no 24-hour report for those issues was done

14 Follow your policies and procedures Plaintiff s Opening Statement November 16th, 2008, again [the resident] is not eating, she's not drinking, she's not taking her medications. No vital signs are taken, no new assessment is done, no new care plan is done, no new 24-hour report for those issues is done. 27 Follow your policies and procedures Plaintiff s Opening Statement [On November 16, 2008, the family members] demand that she goes to the hospital. Upon arriving at the hospital, they find first and foremost her number one assessment is dehydration, and that she has 24 hours or less to live. On November 18th, 2008, two days later, that resident dies at the hospital

15 Follow your policies and procedures 29 Follow your policies and procedures Testimony from facility witness at trial Q. And we also know because you testified that the policy and procedure states that you're supposed to do comprehensive care plans quarterly, correct? A. Yes. Q. Okay. Was that done here for [the resident]? A. There are not quarterly care plans in this chart

16 Follow your policies and procedures Testimony from facility witness at trial Q. The question is, based on the records that [the nursing home] provided to me, they failed to follow their policies and procedures for care plans with regard to [the resident], correct? A. Based on what's here, yes. 31 Follow your policies and procedures Testimony from facility witness at trial Q. If there's a change in condition, there's supposed to be an event report filled out as well, correct? A. Yes. Q. Okay. And there aren't any for 2008, correct? A. Not that I have in front of me. Q. Okay. Based on the records provided by [the nursing home], there are no event reports for 2008, correct? A. Correct

17 Follow your policies and procedures Plaintiff s Closing Statement If there's a change in condition, then there should be a 24-hour nursing report. There wasn't one. If there's a change in condition, there should be an instant care plan. There wasn't one. If there's a change in condition, there should be a risk assessment. There wasn't one. 33 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile 8. Train your staff 7. Set realistic expectations 6. Use the arbitration agreement 5. Communicate with the resident and family 4. If you have a policy, follow it 3. Document appropriately 34 17

18 Document appropriately 35 Document appropriately 36 18

19 Document appropriately 37 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile 8. Train your staff 7. Set realistic expectations 6. Use the arbitration agreement 5. Communicate with the resident and family 4. If you have a policy, follow it 3. Document appropriately 2. Document accurately 38 19

20 Accurate Documentation MDS Records Admission/Readmission Assessments MARs TARs Departmental Notes Wound Evaluation Forms Therapy Records Vital Signs Weights Skin Tracking Documentation 39 Avoiding Litigation 10. Conduct background checks 9. Go the extra mile 8. Train your staff 7. Set realistic expectations 6. Use the arbitration agreement 5. Communicate with the resident and family 4. If you have a policy, follow it 3. Document appropriately 2. Document accurately 1. Provide quality care 40 20

21 Avoiding Punitive Damages Part 2: Once litigation begins, take appropriate steps 41 Responding to Litigation 1. Produce relevant documents once and only once

22 Produce relevant documents The defendant nursing home [d]id not respond fully and completely to Plaintiff s first and second Request for Production, Represented in numerous discovery responses that they had produced all documents responsive to Plaintiff s discovery requests, Failed to comply with trial court Orders, and [E]ither wilfully destroyed responsive documents... or wilfully failed to obey the Alabama law requiring that they retain these relevant documents and to maintain them during the pendency of the litigation. 43 Produce relevant documents It is therefore the recommendation of the Special Master, under Rule 37..., that sanctions be imposed against the Defendants... to the effect that these Defendants reimburse the Plaintiff s attorney fees and expenses expended in their efforts to discovery, and have these Defendants produce, these relevant documents and further that the jury selected be instructed that the nonproduction and/or destruction of these documents creates a presumption that the care and treatment of the Defendant [nursing home] to [the resident] fell below the applicable standard of care

23 Produce relevant documents 45 Produce relevant documents 46 23

24 Produce relevant documents 47 Produce relevant documents 48 24

25 Responding to Litigation 5. Produce relevant documents once and only once. 4. Cooperate with counsel. 49 Responding to Litigation 1. Produce relevant documents once and only once. 2. Cooperate with counsel. 3. Don t guess on corporate structure

26 Responding to Litigation 1. Produce relevant documents once and only once. 2. Cooperate with counsel. 3. Don t guess on corporate structure. 4. Document realistic expectations. 51 Documenting realistic expectations Case Study 52 26

27 Document realistic expectations: case study 53 Document realistic expectations: case study Diagnoses Before Admission End Stage Renal Disease (kidney failure) Congestive Heart Failure Cardiomegaly (weakened heart) Pneumonia Bronchitis Hemoptysis (coughing up blood) Bronchiectasis (damaged airways) Atelectasis (collapse in lungs) Pleural Effusions (fluid around lungs) Pulmonary Edema (fluid in lungs) Pulmonary venous congestion (fluid in lungs) Pulmonary Hyperinflation (abnormal lung volume) Obstructive Lung Disease Hypertension Anemia (low red blood cell count) Atrial fibrillation (irregular heart beat) General weakness Osteoarthritis Osteonecrosis Degenerative joint disease 54 27

28 Document realistic expectations: case study Set realistic expectations: case study 55 Document realistic expectations: case study Plaintiff s Theme at Trial 56 28

29 Responding to Litigation 1. Produce relevant documents once and only once. 2. Cooperate with counsel. 3. Don t guess on corporate structure. 4. Document realistic expectations. 5. Elicit testimony from plaintiff s experts. 57 Plaintiff s Experts Testimony Claiming Gross Negligence or Reckless Disregard for the Safety of Others 58 29

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34 67 Trial Prep and Trial Strategy Center defense around individual facility staff and personalize those caregivers. Minimize defense of parent corporation or management company. Focus on hands-on care. Admit when documentation is not perfect. Prepare experts, Director of Nursing, and other appropriate witnesses to address charting issues. Use Labor Tracker Reports and other documentation to rebut Plaintiff's staffing claims. Emphasize that staff followed MD orders and cannot change orders

35 Trial Prep and Trial Strategy Spend time meeting with key fact witnesses, particularly former employees. Consider use of jury consultants. Be careful when crossing family members. Consider not asking any questions. In wound cases, file MIL to keep out photos and, if denied, use photo in voir dire. Get experts up, teaching with timelines and charts. Carefully monitor record to position for directed verdict on punitive damage claims and claims against management or owner (causation). 69 Avoiding Litigation Questions? 70 35