Wrongful death claims pose a significant concern for healthcare facilities. In a 2019 review of claims, roughly half of fall-related claims involved a death and 62% of closed claims involved death related to pressure injury with total payments related to pressure injury allegations averaging $246, 386.00 (Excelas, 2019). How can your facility ensure that the standards of care are being followed and mitigate the risk of wrongful death lawsuits?

Elements of a Wrongful Death Claim

A ”wrongful death” is defined as a death caused by the negligent, willful, or wrongful act, neglect, omission, or default of another. In a wrongful death lawsuit, the complaint filed by the Plaintiff is likely to allege that the death is related to an injury or illness that was the result of a breach in the standard of care (SoC) by the defendant. In other words, there was a failure on the part of the facility and/or facility staff to do what a reasonable or prudent clinician with the same or similar training would due under the same or similar circumstances. The standards of care are the measuring tools for determining whether healthcare practitioners were negligent.

What comprises the Standards of Care? 

Standards of Care are derived from and reflected in many sources.  These can include:

      • Legal Sources – such as Practice Acts, or State and Federal Laws
      • Regulatory Sources – such as State and Federal Agencies like CMS
      • Accreditation Organizations – such as JAHCO
      • Professional Organizations and Associations – such as the AMA (American Medical Associations), ANA (American Nurses Association), and State Boards of Nursing
      • Scientific Literature – such as Textbooks and Journals
      • Healthcare Facility Sources – including the facility Policies and Procedures, and Critical Pathways

In a lawsuit, the Plaintiff has the burden to define the standard(s) of care (SoC) and prove the defendant deviated from thos standards.   In contrast, the defense must prove that the facility and staff adhered to the SoC, or that any breach in adhering to the SoC did not contribute to the patient/resident death.

Consider these tips for providing a strong defense in wrongful death lawsuits:

      • Review your policies and procedures: Make sure your policies and procedures are current and address how to document and support that the standards of care were maintained.  Include a review of policies and procedures pertaining to how you identify resident risk factors (for falls, skin breakdown etc.) and how you analyze those risk factors and determine the appropriate interventions.  Assess policies and procedures for your care planning processes and how you determine that the baseline care plan is put in place within 48 hours,  that the comprehensive care plan is updated timely,  and that care planned interventions are consistently implemented.
      • Review staff education policies and procedures:  Are you training how to identify resident risk factors and apply root cause analysis to determine appropriate interventions?  Does the education include how to comprehensively document to support what was done to address the identified risks and that interventions are monitored for effectiveness?  Is there a process for determining that staff retain the information provided in the training (i.e., a short test, verbal quiz or case study)?
      • Review QAPI processes: Determine that audits are being completed correctly and not just as “paperwork compliance”, but to truly identify areas that could be improved.  Does your QAPI program look at all aspects of care in the facility, from falls and pressure wounds to hospitalizations and resident deaths?   Consider incorporating the CMS Critical Element Pathways as audit tools into your QAPI program.

Through evaluation and ongoing monitoring of facility adherence to the standards of care, you can promote optimal care quality while mitigating legal risk.

Interested in learning more about this topic? Check out Proactive’s on-demand webinar Fundamentals of Defense Part 1: Falls, Pressure Ulcers, and Wrongful Death and join us for Fundamentals of Defense Part 2 on November 5 or 6.

Janine Lehman, RN, RAC-CT, CLNC Proactive Medical Review

Learn more about the rest of the Proactive team.