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Why is it important for indirect care providers to know about malpractice claims against nursing homes in the United States? It s because your facility is at risk for being sued for malpractice! Right now, litigation for nursing homes is the fastest growing type of health care litigation in the United States! In fact, 9 out of 10 malpractice claims against nursing homes result in compensation to the plaintiff, with an average of $400,000 paid for each claim! You can prevent unnecessary litigation by lowering your risks from the outset. 7

Legislative statutes that pertain to Long-Term Care Facilities in the United States include: 1) Omnibus Budget Reconciliation Act (OBRA) of 1987 2) Nursing Home Quality Initiative (NHQI) 3) Freedom of Information Act In addition, it would be helpful to know what types of legislation affects Long-Term Care facilities in other countries. An Act that was initiated in the United Kingdom in 2007 is The Corporate Manslaughter and Corporate Homicide Act. These legislative Statutes and Acts will 8

be discussed in the next several slides. 8

The Omnibus Budget Reconciliation Act of 1987 deems the medical director of the long-term care facility responsible for medical care policies and coordination of medical care within the facility. Federal and state surveyors often cite facilities for violating this act. Citations can result in administrative penalties that can be as high as $10,000 per day! Violations of this act can also lead to termination of Medicare and Medicaid provider agreements. Medicare and Medicaid provide reimbursement for medical care for many clients who reside in long-term care facilities. Termination of these agreements by the Centers for Medicare and Medicaid Services can cause devastating financial results for many facilities. In addition, federal and state fraud units have increased their efforts to find deficiencies within long-term care facilities. Citations are given to facilities where deficiencies are found. 9

The Centers for Medicare and Medicaid Services launched the Nursing Home Quality Initiative in 2001. This Initiative reviews all nursing home facilities and provides them with a report card grading their performance on 19 identified quality measures. These report cards are viewed by consumers, health care professionals, and state surveyors. Zinn and colleagues published an article in 2010 that investigated the impact of Quality Measure report cards on nursing home improvements. The investigators wanted to determine if these report cards caused nursing home facilities to invest money and resources into rectifying the QM deficiencies found. The results of this study supported their hypothesis that these facilities did indeed take action to improve the poor quality measure ratings. The rationale behind improving their quality measures was to improve marketing their facility because these reports are listed on the Nursing Home Compare website for consumers to view, to preserve or improve their reputation within the health care community, and to improve their professional referral sources. 10

The Freedom of Information Act provides for quality-related information on long-term care facilities to be available to the public. This information, which includes data on facility quality measure deficiencies and citations, is available on the Nursing Home Compare section on the Centers for Medicare and Medicaid Services website and can be retrieved by consumers and plaintiffs attorneys. Newspaper and magazine articles also assess and rank nursing homes. 11

The United Kingdom enacted the Corporate Manslaughter and Corporate Homicide Act 2007 to hold long term care facilities accountable for deaths that occur from gross breach of the relevant duty of care due to poor management. The facility may be levied with fines that range from 2.5% to 10% of annual business turnover. Besides the loss of finances, criminal charges can also result from these actions. If a facility is accused of death by corporate negligence, the reputation of the nursing home will be seriously damaged and the facility may be closed. Police may scrutinize the managers of a longterm care facility with regard to any deaths that may have been caused by inappropriate care. These facilities need to ensure up todate working equipment, a safe environment, and competent staff. Staff should be aware of the standards of care, and management should reinforce the need to adhere to facility policies. Administrators and middle management need to work together to minimize the risk of death and police investigations. 12

The most important goal in keeping patients safe is to properly identify them. This frail, elderly population may not remember their names or may not be cognizant that a staff member needs to know who they are before they are given a dose of medication. The Joint Commission National Patient Safety Goals are in place to help keep residents safe. Patient identification is the most important goal that has been identified by the Joint Commission. One way staff may identify patients is by using the Red Rule, which requires the use of two resident identifiers without exception. If the Red Rule is not followed, then the staff member will face consequences. Some of the identifiers include: name; date of birth; and the last four digits of the resident s social security number. 13

Hospital-associated infections are the leading cause of illness and death in nursing homes in the United States. Infection rates of nursing home residents range from 1.6 million to 3.8 million infections per year, with 388,000 deaths related to these infections. 14

How can your facility reduce the presence of hospital-associated infections? To help limit long-term care facility hospitalassociated infections, some facilities have created bundle checklists, which standardize practice. Following the critical steps listed in these checklists will assist the staff with an organized way to follow the infection control policies. Support from facility leadership will also encourage staff to use these checklists. Handwashing is the best practice for limiting hospital-associated infections, and should be enforced. The Joint Commission Center for Transforming Health Care has developed a hand hygiene matrix to help with limiting hospital associated infections. 15

There are 1.6 falls per bed per year in long-term care facilities. Residents of these facilities are at high risk for falls and injury due to their frailty and multiple comorbidities, such as osteoporosis. Injuries from resident falls can lead to major disability and death. When a resident falls, there is a high likelihood that he or she will sustain an injury. Falls are related to facility negligence because prevention measures should be implemented for all residents. 16

The importance of fall prevention goals is addressed in a 2008 article written by Ferris. These goals are intended to be accompanied by policies and procedures that meet the standard of care for fall prevention. Ferris recommends four fall prevention goals. The first goal is to promote the greatest level of independence and mobility for each resident in the nursing home facility. Greater mobility leads to more stability and fewer opportunities to fall. The second goal is to prevent falls and injuries. This is an important goal that should be discussed within the nursing home management team. A number of successful fall prevention programs are available that can be tailored to your facility. The third goal is to create a care plan for each resident. Staff should prepare an individual plan of care to reduce fall risk for each resident of the facility. Each resident should be assessed to determine if he or she is at high risk for falls. A specific plan of care designed for each resident should then be developed and followed. As an indirect care provider, ask your manager what your role is in the fall prevention plan within your facility. The fourth goal is to create a safe environment for the resident 17

within the nursing home facility. Several environmental safety features can be put into place by the nursing home to reduce the risk of resident falls. 17

Many plaintiffs attorneys claim that a resident s fall was caused by a lack of physical restraints when he or she was at risk for a fall. However, it is well known in the medical community that restraints do NOT prevent falls! Utilization of physical restraints in long-term care settings is highly regulated. Recommendations for use of restraints include use of the least restrictive device and informed consent. Restraints must be ordered by the resident s physician, and the patient should be assessed regularly to justify continuation of this order. Nurses need to prepare adequate documentation about the use of restraints that includes: 1) reason for the use of restraints; 2) the time the restraints were initiated; 3) the time that the restraints were removed; 4) the rationale for removing or discontinuing the restraints. 18

Documentation in nursing notes for resident restraint use must include the exact times that restraints are released. Residents may be released from physical restraints for ambulation and toileting. The staff member must document each time a resident is taken out of the restraints. Staff members should attend meetings to prepare and implement a plan of care for the use of restraints for each resident. These periodic care plan meetings will help determine if the physical restraints can be used less frequently or discontinued. As an indirect care provider, what is your role regarding restraints with residents? Understanding the regulations with restraint use is important so that the quality of care can be maintained with all nursing home staff in the facility. 19

Water is essential for the body to function. Water is needed by the cells, tissues, and organs of the body because it assists the cells as a type of building material. Other benefits that water provides include: 1) carrying nutrients into cells, 2) thermoregulating the body by vaporizing heat, and 3) providing lubrication and shock absorption. Within the elderly population, dehydration is the most common fluid and electrolyte disorder. Nurses should assess residents for signs of dehydration and poor oral intake. Once these residents have been identified as being dehydrated, realistic nursing care plans and goals that address this issue should be prepared. 20

A number of nursing home residents develop difficulty with swallowing, which is known as dysphagia. It occurs with latestage dementia or stroke. It becomes a challenge for staff to feed residents with dysphagia. It s actually easier to help residents with dysphagia if a feeding tube is not in place! How can you avoid placing feeding tubes in residents? Weinberg and Levine suggest increasing nutrition and caloric intake by providing: 1) small portion meals; 2) finger foods; 3) snacks; and 4) high-calorie supplements. Hand-feeding is another way to avoid feeding tubes. Nursing staff and dietary personnel can identify the resident s favorite foods and drinks to help encourage consumption. 21

When caring for residents in nursing homes, it is important to get accurate assessment information on each resident. Assessment data for nutrition and hydration include: 1) accurate weights; 2) calculate caloric intake; and 3) determine if dysphagia is present. If the resident is diagnosed with dysphagia, he or she should be referred to a speech and language pathologist. 22

In 2001, the FDA released a Public Health Advisory Report about 4 incidents of gas mix-ups in health care facilities. These cases resulted in 7 deaths and 15 injuries. Case #1 occurred in December 2000, in a nursing home in Ohio. A maintenance employee who was asked to change the oxygen tank mixed up the nitrogen tank with the oxygen tank. He over-rode the safety system by removing the oxygen nozzle and placing it on the nitrogen tank. As a result, four deaths occurred! Case #2 occurred in April, 1998 at a hospital in Idaho, where industrial nitrogen was hooked up to an oxygen system. This system supplied oxygen to the emergency department, labor & delivery unit, and operating rooms. This incident led to two deaths. Case #3 occurred in October, 1997 at a hospital in Nebraska. A tank of argon was connected to the oxygen supply, which resulted in 2 deaths to residents having minor surgery. Case #4 occurred in December 1996 at a children s home in New York, where carbon dioxide tanks were connected to the oxygen supply. This resulted in 9 adverse reaction reports, which included 2 in critical condition and 4 with respiratory distress problems. 23

Recommendations from the Public Health Advisory Report include: 1) storing medical grade tanks separate from industrial grade tanks; 2) training all employees who handle medical gases; 3) ensuring all oxygen tanks are properly labeled; 4) educating all employees who change medical tanks on proper technique; 5) educating all employees to never change fittings on gas tanks; and 6) verifying with another knowledgeable employee that the proper tank is being connected to the system before the gas is turned on. 24

Don t assume that you or your facility is immune to gas mix-ups. Please read through the questions on this slide and take a few minutes to think about the answers. 25

How can you as an indirect care provider assist the long-term care facility with reducing liability risk? Talk to your manager to discuss this topic. Nursing home managers need to reinforce the importance of documentation completeness to staff! One way to accomplish this is to prepare and keep a risk management checklist handy to make sure that all items on the list are addressed. Staff should perform a thorough admission assessment on every resident and the findings documented. Based on the assessment findings, resident care plans should be developed, followed, and updated as needed. Risk assessments should be performed during admission on all residents. Once an injury occurs, an incident report should be completed that includes a thorough explanation regarding the injury and circumstances. The medical record should be updated to include the time and date the residents physician and family members were notified of the injury. Physician orders for treatment and interventions performed by staff must be detailed in the medical record. All interventions related to a resident injury should be performed in a timely manner. To avoid resident injury, seek out and implement prevention programs. Educate staff and family members on your facility s prevention programs. 26

Utilizing these suggestions can help create a safer environment for residents and a lower liability risk for your long-term care facility! 26

Hand hygiene is a vital aspect of infection control in long-term care facilities. The Joint Commission Center for Transforming Health Care has developed a Hand Hygiene Project. This information is included in the website link. 27

This link will bring you to a medical gas webpage on the US Health and Human Services website. To access the FDA 2001 report, you will need to click on Access the complete FDA Guidance document which will bring-up a detailed medical gas report. This report describes four cases of medical gas mix-ups and provides recommendations for prevention. This can assist your facility with prevention methods to help avoid a situation like this from occurring in your facility. 28