How to get sued in five easy steps: experienced observers tell how facilities place themselves at risk.

Everyone involved in long-term care faces the looming specter of lawsuits. Although some suits have merit, some unscrupulous attorneys exploit the public's fear of old age to deliver huge jury awards in cases against long-term care providers. Even in assisted living facilities, which have historically been somewhat insulated from litigation, that special status is starting to change. For example, a family sues an assisted living facility in Wisconsin for frostbite injuries sustained when an elderly woman suffering from dementia wanders outside in freezing weather, and a family sues because a man chokes on food and a state survey shows that the only caregiver on duty was not properly trained in basic CPR. Just because your facility "would never allow" such things to happen doesn't mean that it's invulnerable.

So let us serve as devil's advocates. We are clinicians who work almost exclusively in long-term care. We have discussed care--good and bad--at length with hundreds of residents and family members. One of us has served as an expert defense witness on behalf of facilities being sued. One of us has had several family members living in long-term care facilities. We believe that we are uniquely qualified, therefore, to show you in no uncertain terms how you can get yourself thoroughly and successfully sued. If you do the opposite of what we say, you might just have a chance. We follow these steps with some italicized recommendations that we think you should follow.

Step One

Invest in impressive marketing materials such as brochures and advertisements that promise potential clients "comprehensive care" or "aging in place." When physical or behavioral problems arise, blame the resident.

We are called time and again to examine residents who "refuse" to stay in their wheelchairs. Staff tell us that no matter how often they remind a resident, "He just will not stay seated and always wants to get up." We have seen residents with documented diagnoses of dementia (and clear clinical symptoms) left without even a lap restraint for hours in a dark room alone. When the resident falls, the family is told, "He never listens, but he knows not to get up on his own."

It is imperative to fully understand how dementia affects the actions and judgment of a resident. This cannot be overstated. As many as 50% of your residents likely have some form of dementia, and you cannot adequately care for them if you don't have as clear an understanding of dementia as you do of decubitus ulcers. Residents with dementia cannot be expected to take responsibility for their own safety. If they could, they likely would not be in your facility in the first place.

Step Two

Avoid documentation that accurately reflects the resident's condition.

Nothing is more frustrating than to be asked to treat a resident for aggressive behavior with no information on the resident's mood, appetite, level of arousal, or calls for help. The explanation usually given to us is, "He's always this way." We have seen residents who are actively hallucinating, do not know their own names, and are visibly dehydrated with no assessment for dementia, no documentation of the presence or absence of a mental disorder, and no mention to the family of the resident's behavior. As a health professional dealing with a population with a high prevalence of dementia, it is your responsibility to recognize disorientation, psychosis, and memory loss and to document these conditions appropriately. If you are unsure of your or your staff's clinical skills in this area, invest in adequate training to correct any deficiencies.

Step Three

Make unilateral decisions without fully consulting with the resident or his/her family.

For example, we have been asked to see residents who were "difficult to manage" or "violent" and told that if we couldn't intervene quickly, the resident would be evicted or moved to a lower level of care. In such cases, it is not uncommon that the family and resident have no idea that there has been any talk of the resident's leaving the facility.

Planning a life-changing move without warning the resident or the resident's family--particularly if your marketing materials promise care through the end of life--is devastating and will almost surely provoke rage. Angry residents or families who are scared and sense that you want to be rid of them will likely see legal action as their only recourse. Aggressive behavior in a resident is difficult for everyone, but it is a common behavioral problem associated with dementia. Families are understandably frightened, ashamed, and upset to hear that their loved one is aggressive. Careful consideration of the family's feelings, inclusion of the family in discussions of the problems, and collaboration with the family to find solutions will leave little room for allegations of negligence.

Step Four

Ignore consultants' recommendations, explaining that you just don't have enough staff to implement them.

This most commonly occurs when a resident has behavioral disturbances and one of us has recommended behavioral interventions to manage them rather than using medication. It is not uncommon for one of us to have her recommendations be completely ignored. For example, residents who "won't stay" in their wheelchairs and "insist" on walking need closer monitoring, aided ambulation, increased stimulation, pain management, and possibly a toileting program before medication is even considered. Sometimes after a perfunctory attempt at keeping the resident a little longer in the dayroom, with no concerted attempt at an integrated behavioral program, the staff will say, "We've tried everything," and begin restraining the resident in the wheelchair or bed. The inevitable falls as the resident fights the restraints or climbs over bedrails are often grounds for legal action by families, especially if you have indicated to them that your staff is too small to provide the care you promised.

Step Five

Attempt to cover your mistake by saying that the resident is "confused."

There is no way that any facility can be perfect all the time, but covering mistakes by asserting that the resident is confused is inexcusable; it will quickly ruin rapport with even the most supportive of families. For instance, it is not uncommon for residents to be told to use their incontinence pads or briefs at night rather than to be taken to the restroom when they request it. Addressing a complaint about this by telling families and physicians that this doesn't occur and the resident must simply be confused has various consequences: The resident might become more helpless and hopeless, and eventually clinically depressed, or the necessary monitoring of pressure ulcers may be omitted because the true frequency of soiled linens is not reported. A jury will often forgive an honest mistake, but deliberately discounting a helpless resident's complaints because of a convenient diagnosis of dementia will likely cause a jury to make an example of the facility.

Clearly, all facilities have caring, concerned, and dedicated staff. Thankfully, not all facilities have engaged in the tactics we have described above. It remains true, however, that because of the extreme vulnerability of long-term care residents, public scrutiny of the facilities that house them is intense. We all lament the growing paperwork of defensive medicine, but these (or, rather, their opposites) are the steps you can take to mitigate the danger of legal action against your facility. Remember the two key ingredients to minimizing risk in these situations: knowledge of dementia and its impact on people, and consistent communication with families.

Martha E. Leatherman, MD, and Katherine E. Goethe, PhD, are partners in the consulting firm Dignity First, based in San Antonio, Texas, and focused on improving long-term caregiver skills. Dr. Leatherman is a geriatric psychiatrist who cares for elders in various long-term care settings and serves as an expert examiner for the Texas State Board of Medical Examiners. Dr. Goethe is a licensed psychologist specializing in the neuropsychology of aging. For further information, phone [phone] or visit www.dignityfirst.net. To send your comments to the authors and editors, please e-mail [e-mail].

MARTHA E. LEATHERMAN, MD, AND KATHERINE E. GOETHE, PHD