BENEVOLENT GESTURE MEDICAL PROFESSIONAL LIABILITY ACT: WHAT IT MEANS FOR LONG TERM CARE PROVIDERS
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1 BENEVOLENT GESTURE MEDICAL PROFESSIONAL LIABILITY ACT: WHAT IT MEANS FOR Robert A. Evarts, Esquire Kennedy, PC Law Offices LONG TERM CARE PROVIDERS
2 AGENDA 1. The Act 2. Who can offer a benevolent gesture? 3. To whom can a benevolent gesture be offered? 4. What constitutes a benevolent gesture? 5. When can a benevolent gesture be offered? 6. What should you do? 7. Conclusion and Questions
3 THE BENEVOLENT GESTURE MEDICAL PROFESSIONAL LIABILIT Y ACT Passed unanimously through the House and Senate with bipartisan support Applicability applies to actions commenced after December 23, 2013 Championed as a type of medical tort reform intended to encourage frank discussions between health care providers and recipients, families and representatives
4 THE BENEVOLENT GESTURE MEDICAL PROFESSIONAL LIABILIT Y ACT What is it? An evidentiary rule that places limits on the general rule Rule 402. General Admissibility of Relevant Evidence All relevant evidence is admissible, except as otherwise provided by law THE ACT CREATES AN AS OTHERWISE PROVIDED BY LAW EXCEPTION TO THE RULE
5 THE BENEVOLENT GESTURE MEDICAL PROFESSIONAL LIABILIT Y ACT If a health care professional offers a benevolent gesture made prior to the commencement of a medical professional liability action, administrative action, mediation or arbitration, it is inadmissible as evidence of liability The benevolent gesture can be still be admitted in court, but it can t be used as evidence of liability
6 WHO CAN OFFER A BENEVOLENT GESTURE? Physicians Hospitals Nursing Homes Assisted Living Facilities Personal Care Homes Birth Centers Certified Nurse Midwives Officers of facilities Employees of facilities Agents of facilities Acting in the scope and course of employment
7 Open questions: WHO CAN OFFER A BENEVOLENT GESTURE? What is an Agent? What about nurse practitioners? If a physician/officer/employee/agent says something that is not protected, does that implicate the facility?
8 TO WHOM CAN A BENEVOLENT GESTURE BE OFFERED? Patient/Resident Patient/Resident s relative Patient/Resident s representative designated to make medical decisions under a health care power of attorney.
9 TO WHOM CAN A BENEVOLENT GESTURE BE OFFERED? The Act defines Relative as: 1. Spouse 2. Parent 3. Step-parent 4. Grandparent 5. Child 6. Step-child 7. Grandchild 8. Sibling 9. Half=sibling 10.Spouse s parent 11.Any person who has a family-type relationship with Patient/Resident NOT CLEAR WHETHER IT APPLIES TO SAME SEX PARTNERS
10 WHAT CONSTITUTES A BENEVOLENT GESTURE? ACTION, CONDUCT, STATEMENT OR GESTURE THAT CONVEYS A SENSE OF APOLOGY, CONDOLENCE, EXPLANATION, COMPASSION OR COMMISERATION EMANATING FROM HUMAN IMPULSES
11 WHAT CONSTITUTES A BENEVOLENT GESTURE? Action, Conduct, Statement or Gesture Can be anything from a hug to a sympathy card Apology, Condolence, Explanation, Compassion or Commiseration Explain - Empathize
12 WHAT CONSTITUTES A BENEVOLENT GESTURE? THE BENEVOLENT GESTURE MUST PERTAIN TO THE RESIDENT S DISCOMFORT, PAIN, SUFFERING, INJURY OR DEATH AND RESULT FROM ANY TREATMENT, CONSULTATION, CARE OR SERVICE PROVEDED OR OMITTED BY THE PROVIDER
13 WHAT CONSTITUTES A BENEVOLENT GESTURE? DISCOMFORT, PAIN, SUFFERING, INJURY OR DEATH MUST RELATE TO THE RESIDENT S HARM TREATMENT, CONSULTATION, CARE OR SERVICE PROVIDED OR OMITTED MUST RELATE TO THE CARE PROVIDED BY YOU
14 WHAT IS NOT A BENEVOLENT GESTURE? A Benevolent gesture does not apply to communications, including excited utterances, that also include Statement of Negligence or Fault pertaining to an accident or event
15 WHAT IS NOT A BENEVOLENT GESTURE? STATEMENT OF NEGLIGENCE OR FAULT DO NOT FALL ON YOUR SWORD!!!
16 WHEN ARE BENEVOLENT GESTURES COVERED UNDER THE ACT The Act only protects benevolent gestures made prior to the commencement of legal action (e.g. professional liability action, administrative action, mediation or arbitration) Vital that benevolent gestures are made as soon after the adverse event as possible to ensure it is covered under the act.
17 WHAT SHOULD YOU DO? Train you staff in: What can they say What should they say or do To whom they can say it THE DIFFERENCE BETWEEN EMPATHY AND APOLOGY!
18 WHAT SHOULD YOU DO? What can your staff say or do? They can express empathy They can send a sympathy card or note They can meet with the family and/or resident EMPATHY IS ALWAYS OKAY!
19 WHAT SHOULD YOU DO? What should your staff not say? Blame someone else Complain about staffing, conditions, bosses, coworkers Joust with the family/resident Speculate DO NOT ADMIT FAULT - UNTIL IT IS THE APPROPRIATE TIME!
20 WHAT SHOULD YOU DO? Who should your staff speak with? The resident and the family The health care agent under a POA No Hiding!!!!
21 WHAT SHOULD YOU DO? Learn the difference between Empathy and Apology APOLOGY is taking responsibility for the event Only to be used after an investigation has been completed and it demonstrates that you are at fault ONLY APOLOGIZE WHEN IT HAS BEEN DETERMINED THAT THERE IS FAULT!
22 WHAT SHOULD YOU DO? EMPATHY is connecting with the resident and family Demonstrates that you understand how they feel and you feel sorry for them Good to use for both small and more serious events EMPATHY IS ALWAYS GOOD AND WELCOME!!
23
24
25 SOME EXAMPLES OF EMPATHY 1. I m sorry your food is late. I will get your food and bring it right to you. 2. I m sorry your father is having a hard time getting used to his new home. Let s figure out how we can all work together to make the transition smoother. 3. I m sorry your mom passed away after she fell. We feel horrible for you and your family. We are going to learn how this happened. We will give you an update at 3:00 tomorrow afternoon. In the meantime, is there anything we can help you with right now? Do you need a minister or a counselor? Again, we are very sorry and you have our deepest sympathies.
26 SOME EXAMPLES OF APOLOGY 1. I m sorry I got delayed delivering your dinner. I didn t start my deliveries on time and I will make sure it won t happen again. 2. I m sorry your father fell and is in the hospital. After we looked into the situation, we learned that he was getting out of bed to go to the bathroom when he fell. He said he needed to use bathroom but couldn t reach his call bell. That is not our standard of care and we are retraining all of our staff to make sure that the call bell is always in reach of our residents. I m sorry that this happened. We accept responsibility for his fall. Is there anything we can help you with now?
27 Saying SORRY is always okay!
28 QUESTIONS
29 Since 2001, Kennedy, PC Law Offices has been providing exceptional and affordable legal services to the long=term care provider community. Because of our highly focused practice areas, our clients enjoy personal attention backed by extensive experience. From large organizations traded on the New York Stock Exchange to government owned facilities to small organizations, we represent clients the way they expect and deserve to be represented. For more information, please contact: Robert A. Evarts (717) ext. 116
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