Minimizing the risk of suits for improper care.

THE GROWING NUMBER OF NEGLIGENCE LAWSUITS AGAINST nursing homes, combined with an increase in the size of awards, are making facilities pay special attention to risk management. Not only can such suits have an economic impact on your facility, but the incidents they bring to light can adversely impact the reputation of your facility for a long time.

Risk management is a facility-wide program designed to reduce preventable injuries and minimize the financial severity of any claims. It involves identifying high-risk areas and procedures, and implementing corrective or preventive actions.

There are two types of negligence--environmental and professional. Environmental negligence involves problems with your physical plant that can result in injuries caused by slips or falls (usually on a wet floor), security breakdowns such as theft, fires with associated injuries or loss of property, equipment failures leading to injury, or problems in areas of a facility that are undergoing repair.

Professional negligence is a more complex problem. It can include claims related to falls (whether or not the resident was attended), medication errors, bums, untreated or undiagnosed infections, dehydration, mental conditions, allergic reactions to medications, improper discharge and/or transfer, and the development of pressure sores. Other claims can involve a resident wandering away from the facility and subsequently getting injured, the assault of one resident by another or by an intruder, staff abuse of a resident, improper discharge and/or transfer, and violations of a resident's rights, such as the failure to obtain informed consent for a treatment or medication.

To minimize the risk that your facility and staff will be named in such a claim, you need to set up systems to help ensure good care and proper documentation, educate all employees about the importance of these two crucial areas, and make sure your medical director and DON review and investigate all key event-related decisions and complaints.

The vast majority of suits are brought by residents' families rather than the residents themselves. Efforts to maintain a friendly relationship with a resident's relatives and friends are therefore critical to avoiding lawsuits. When there is an acute decline in a resident's health, talk honestly to family members about what is happening and why. Try to treat them as "friends" rather than simply as clients. Involve them in core decisions and document their input.

Before a lawsuit is filed, the attorney for a potential plaintiff will seek to "discover" information from the resident's attending physician and the nursing home in order to determine the extent of injury, type of evaluation and treatment ordered, laboratory results, clinical data obtained by the nursing staff, and any other documentation that might support a lawsuit. In reviewing these records, the attorney will be looking for deviations from standards of care delineated by federal and state statutes or regulations, the nursing home's policy manual, the parent corporation's regulations, as well as general standards of care.

The attorney is likely to look at staff time cards to determine whether legal staffing minimums were maintained at all times, and to see if entries in resident records were made by an employee who was not clocked in as being at work.

The attorney will probably request all relevant nursing notes, resident care plans, names and addresses of all employees who have left your facility since the time in question, flow sheets, medication/general orders, inservice manuals, facility policy books, and any log books kept by the medical director.

With these documents, the attorney will try to discover discrepancies between physician orders and documentation of compliance and between resident care plans and efforts expended, problems with fluid or food intake, and inconsistent documentation by nursing staff. He will also look for errors or omissions on charts, failure to inform the attending physician, chart entries made long after a particular incident occurred, and failure to update or follow the resident's care plan.

Because such documents could become evidence in a case against you, your staff should avoid criticizing other physicians or staff members in residents' records. And physicians should refrain from criticizing, for example, the consultant pharmacist. Staff members who regularly write negative comments should be counseled; physicians who do so should be spoken to by the medical director.

To avoid claims that staff failed to inform an attending physician of a sentinel event, consider establishing "physician notification parameters" so the nursing staff knows how quickly they need to contact the attending physician. These parameters may include new onset of bleeding, changes in mental status, chest pain, diarrhea, edema, feeding tube problems, falls, family questions and requests, medication errors, abnormal laboratory values, pressure sores, seizures, shortness of breath, skin rashes, changes in vital signs, and weight loss.

In-service educational offerings for nurses and nursing assistants are a critical component of all risk management programs. Due to high turnover, quarterly repetition may be needed.

Nursing notes should be clear and concise. For emergencies, a nurse's progress notes should document all attempts to contact the physician, family, or designated legal representative. All physician orders and the response to ordered treatments should be recorded. The nursing staff should always contact the attending physician if a resident fails to respond adequately to a treatment or his condition worsens.

Incident reports should be filled out by staff for any significant occurrences at the facility, and the medical director and the director of nursing should be notified immediately of all major incidents, especially alleged charges of abuse.

Some facilities have potentially compensable event (PCE) reports. These are triggered by any departure from normal resident care or any accident that might result in injury for which the facility could be held legally and financially responsible. The PCE reports will provide documentation that the facility promptly responded.

The following steps will help you manage risk for your facility.

* Offer regular risk management inservice presentations for all staff. These programs should not only present factual information, such as how to keep better records, but also stress that a positive attitude toward residents and their families can go a long way toward reducing the frequency of lawsuits.

* Establish a risk management committee. Members should include the administrator, director of nursing, and medical director, as well as other appropriate staff such as staff nurses, physical and occupational therapists, and the activity coordinator. Generate incident reports for all events and use them as a database to identify patterns at the facility so that solutions can be formulated. The committee should review all of these reports to look for patterns that may need interventions. All significant findings should be reported to the medical board. The medical director can use this committee's findings to focus on residents who are receiving high-risk medications and those with a change in their condition that indicates the need for a more detailed evaluation.

* Document and share information appropriately. Contact the family and attending physician after all critical incidents, a change in a resident's condition, or abnormal results of laboratory tests. If the primary attending physician is not available, notify the covering doctor or the medical director. Always investigate specific incidents of injuries and document any corrective action taken. Do not hide, disguise, change, or otherwise interfere with the proper evaluation and treatment of injuries sustained at your facility. Report all incidents to the proper authorities as legally required in your state.

* Establish a restraint committee to monitor the need for, method of application, and frequency of use of all restraints. This committee should do more than simply ascertain that a physician's order exists and a progress note was written to justify the use of the restraint, although these actions are also required.

* Use family council meetings to build resident and family support for your facility. Such meetings can also be used to discuss areas of concern that may arise. The medical director or another attending physician should often be present for short discussions of specific problems, medical topics, or facility programs, such as the meaning of DNR orders or the proper response to a fever.

* The medical director should be an active member of all major committees. The medical director should also be involved early on in any complaints (formal or informal) against an attending physician in cases of alleged resident abuse and anytime there are facility-wide epidemics. The medical director should act as a liaison with other attending physicians when communication or coverage issues are involved. The medical director should also be comfortable issuing emergency coverage orders if the primary attending physician cannot be readily located. The medical director's contract should specify exact hours of employment and responsibilities the facility expects to receive.

* The director of nursing (or designees) should regularly review the assignments of nursing assistants to difficult or abusive residents to ensure that assignments are rotated. This will help reduce staff burnout and the potential for staff-initiated abuse.

* Attack pressure ulcers aggressively. Form a skin care team to routinely assess the skin condition of each new resident and to oversee and coordinate the evaluation, treatment, and follow-up of all pressure ulcers that develop in the facility. The team may also wish to develop and implement standardized treatment protocols for all stages of pressure ulcers.

* Take all complaints of alleged abuse extremely seriously and investigate them thoroughly. Simply because a resident is legally incompetent or has some degree of cognitive impairment does not necessarily mean that his story is without merit. If a member of your staff is prone to abusing residents, it is best to identify him or her early on and either change the assignment or terminate the employee.

* Foster a positive attitude toward problems and not an us-versus-them mentality. Respond to problems enthusiastically, not grudgingly. Come up with ways to avoid repeating them, not to minimize potential liability or deflect blame. Make sure staff members understand that they are mutually responsible for preventing problems, addressing outcomes issues, and formulating plans to resolve high-risk areas.

In the end the quality of care delivered will improve, and so will your facility's reputation.

Andrew D. Weinberg, MD, FACP, is associate professor of medicine at the Emory University School of Medicine in Atlanta and serves as medical director for three nursing homes in the Atlanta area. He is also medical director for long term care for the Wesley Woods Center of Emory University.