4/13/2019

Stemming Long-Term Care Losses

Strategies for mitigating exposures and reducing claims.

By Chanel A. Mosley

It should come as no surprise that the number of claims pursued in the long-term care arena is steadily increasing each year. Several factors contribute to the escalation in post-acute care litigation, including acuity creep; avoidable hospital readmissions and transitions in care; poor quality assessment and improvement programming; inadequate care planning; and lack of an integrated risk-management approach.

However, by improving communication by and between providers and patients, implementing best practices for collaborative care, and engaging in a multidimensional quality assessment and improvement approach between long-term care providers, their defense counsel, and risk managers, these facilities can mitigate exposure and reduce the likelihood of claims.

According to The Centers for Medicare & Medicaid Services (CMS), the estimated annual cost of unplanned hospital readmissions as of 2016 was more than $20 billion and growing. Ineffective transitions in care are detrimental to both the patient and the health-care provider, and they account for increased hospital readmission rates that, in turn, can result in adverse events and increased cost and expense.

During the transition from acute care to a post-acute facility for rehabilitation or long-term care, patients are particularly vulnerable to the risks of infection, decompensation in functional capacity, confusion, medical complications, and prolonged recovery and rehabilitation—all of which are likely to lead to hospital readmission. When those readmissions are deemed to be avoidable or otherwise preventable, not only do providers face penalties for excess readmissions, but also acute and post-acute providers are faced with exposure to claims by patients and their family members. Claims often arise relative to premature hospital discharge or transfer, failure to follow up, appropriateness of placement, and inadequate documentation and continuity of care.

So how can long-term care providers reduce the chances of facing these claims? By implementing risk mitigation tools and intervention techniques—such as early collaboration with defense counsel, formulation of effective quality improvement models, and innovative solutions to reduce hospital readmissions such as the use of mid-level providers like nurse practitioners—providers may improve the quality of care, decrease avoidable hospital readmissions, and become better prepared and protected when litigation does arise.

Improving Quality Assessment Programs

Long-term care providers can mitigate exposures by evaluating readmission tracking data; regularly reviewing patient acuity and propriety of placement; and routinely educating patients and providers on comprehensive and collaborative care efforts, then putting that information to use in improving the quality of patient care. Quality improvement programs focus on improving patient care, particularly when acute changes in condition occur. The importance of early identification and assessment when these changes occur, as well as improved advance care planning and the ability to manage the conditions in-house versus transferring to an acute-care setting, are all factors that should be considered when implementing a successful quality improvement program. By improving earlier assessment and detection of conditions warranting necessary hospital readmissions versus those that can be managed through a nurse practitioner or physician on staff inside the long-term care facility, the risk of adverse patient complications and deterioration in conditions is likely to decrease.

For example, there is a growing trend among some long-term care providers to employ nurse practitioners who are able to successfully manage a variety of patient conditions in-house rather than transferring the patient to the hospital when a physician is not available. Implementing such an approach may allow the facility to better identify and manage the patient’s condition in a setting that is more comfortable for the patient and avoids the risks associated with readmission, such as infection, further deterioration, or a breakdown in continuity of care. In Canada, mobile care programs are being implemented to mobilize urgent care to patients in their home environments at a long-term care facility, rather than transferring the patient to the emergency room. By utilizing this concept, patients with lower acuity illnesses can obtain care without ever leaving the nursing home. These two innovative approaches are not only reducing the cost of medical care by lowering the rate of hospital readmissions, but also they are improving the quality of patient care.

No Claim Yet? Still Call Your Lawyer

It’s long been the thought process to involve defense counsel only after the long-term care provider has been notified of a claim. But why wait that long? By involving defense counsel in the quality assessment and improvement process as well as the pre-suit investigation of incidents that are likely to lead to claims, long-term care providers may be able to reduce the likelihood of litigation.

The key to quality improvement is the process of conducting look-backs and reviewing pertinent data on adverse incidents, hospital readmissions, and other patient information that is collected. By integrating defense counsel into discussions centered on improving the level and quality of care, long-term care providers are far more likely to be in compliance with all applicable rules and regulations and be able to adapt when needed to conform to changes in the law and emerging legal trends. They will also gain new perspectives on risk mitigation and areas of potential exposure not otherwise identified.

Further, when incidents do occur, involving defense counsel in the process of investigating those incidents and working with patients and family members to find solutions can be invaluable. Oftentimes, poor customer service and inadequate communication play a substantial factor in the manifestation of a claim.

For example, when an incident occurs and patients or family members become concerned or upset, a multidisciplinary approach to resolving the problem and addressing those concerns can save the long-term care facility from a lawsuit. Many times, plaintiffs say, “All I wanted was an apology,” or “I just wanted someone to communicate with me.” Bring the administrator, director of nursing, nursing supervisor, social services director, attending physician, defense counsel, or anyone else pertinent to the conversation to the table and collaborate on how to address and correct the patient’s problem or concern. Ensure that an action plan is created and understood by everyone involved, and emphasize the importance of carrying through and follow up. Manage expectations, streamline communication, and ensure that the patient and family members are equipped with information that they can act on. Your defense counsel may also be able to identify additional issues that are likely to result in claims and diffuse the situation before it progresses.

Finally, ensuring that key evidence is properly preserved and maintained in the event of litigation is also extremely important and can help to avoid being faced with spoliation of evidence claims or sanctions down the road. By involving defense counsel early on, long-term care providers can obtain guidance and assistance on collecting key evidence and information from important witnesses before memories fade or documents are lost or destroyed. Additionally, attorney-client and work-product privileges may attach, which help protect the investigation and preserve its confidentiality.

In the current state of rising long-term care litigation, these tools may be the keys to successfully mitigating exposure and reducing the prevalence of claims.



Chanel A. Mosley is a shareholder in the Orlando office of Marshall Dennehey Warner Coleman & Goggin. camosley@mdwcg.com

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