Nursing home settlements involving abuse or neglect in the United States are estimated at an average of $400,000.00 when the case settles out of court (What is the Average Settlement for Nursing Home Neglect? (sgklawyers.com). If the case proceeds to a court trial, the payout can reach upwards of $1 million or more (Id.) Depending on the liability insurance deductible, these settlement amounts can be devastating to most long term care facilities, even if the case does not proceed to trial. How can facilities mitigate risk and avoid litigation?
It is estimated that abuse related lawsuits have a high probability of success in court, with some estimating 90% odds of winning cases with a 7 figure settlement. Depending on the nature and severity of injuries, when injury victims of nursing home abuse proceed to court they have a high rate of success with higher payouts than most settlement awards.
Mitigating Risk
What can facilities do to mitigate risk and prevent litigation for their facilities? Being familiar with the care issues that have the highest level of litigation risk in long term care, and implementing systems and processes that address those risks, are the most critical preventive measure facilities can take.
Of the 209 FTags, the following are associated with the highest risk of negative outcomes to residents:
- Abuse/Neglect (with emphasis on resident-to-resident altercations and interactions, and staff abuse allegations)
- Accidents/Incidents (especially falls, elopement and smoking, hot liquids)
- Skin Management and pressure wound prevention
- Nutrition/Hydration
- Other areas of high risk include:
- Pain Management
- Medication Management (particularly psychotropics)
- Infection Control (with emphasis on the COVID pandemic)
- Enteral/Parenteral Feedings/Fluids
- Respiratory Care
- Dialysis
- Behavioral Health
Having a clear understanding of the regulatory requirements for each of these FTag areas of risk is crucial, but making sure the direct care staff have also been educated on these requirements is equally important. Ensuring that facility policies and procedures reflect the most recent regulatory requirements and current standards of care will serve as the basis for the education provided for staff. Verifying that the facility has a robust resident assessment process, with supporting documentation is another critical component. A strong QAPI process to monitor staff compliance with the regulations and standards of care will help the facility to identify any areas that might warrant further education or needed changes in policies or protocols.
Outside of having knowledge of the greatest areas of risk, the facility must also have an understanding of the significance of frequent and comprehensive communication with residents and their representatives. Many lawsuits stem from a lack of keeping residents and families informed timely of resident status, any changes in medications or treatments, any accidents/incidents, or any changes in resident condition. Facilities must have policies and procedures in place to guide staff on the process to make sure that the resident and family is notified of these critical issues, and what to do when the family/representative cannot immediately be reached.
By addressing these areas to mitigate risk, the facility can make strides in preventing litigation.
Interested in learning more on this topic? Join us for the LTC Litigation Briefing as part of the “You Might be an Administrator if…” series on May 16, 2023 where Proactive Legal Nurse Consultants share more tips and strategies regarding long term care lawsuits.
Written By: Janine Lehman, RN, RAC-CT, CLNC
Director of Legal Nurse Consulting
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