McKnight’s recently had an article where a nursing home defense legal expert is offering advice to protect nursing homes from being held responsible for any neglect or negligence during the pandemic. Advocates and experts recommend that providers document everything related to their response to the coronavirus pandemic. It’s a move that could help providers defend themselves in a potential lawsuit stemming from their response. Of course, that is already the standard. Facilities should be making complete, accurate, and timely documentation of all care and treatment provided to residents. Often nursing homes will not document and then argue they chart by exception or only when something is wrong. In addition, the Florida Health Care Association came under fire over the weekend, when the group had written the governor to ask for blanket immunity for healthcare providers from COVID-related lawsuits.
“Documentation is critical. Document, document, document your efforts,” Christy Tosh Crider, chair of Baker Donelson’s Health Care Litigation Group and the Women’s Initiative. She issued the warning during a webinar hosted by the Society for Healthcare Organization Purchasing Professionals (SHOPP). “You need to be documenting as each new piece of guidance comes out. As you and your organization respond to that new piece of guidance, document what you knew, when you knew it and what your response was,” she advised.
Many providers may be subject to lawsuits in the coming months due to unfortunate patient outcomes from the new coronavirus, she assumes, adding that supply managers and procurement officers may become critical witnesses in such litigation. Tosh Crider said the focus of future lawsuits likely will involve staff members who have tested positive for the disease returning to work; struggles to get personal protective equipment; and staff training on how to effectively use personal protective equipment. For procurement officers at the corporate level, she warned that they should be documenting all of their decision-making and struggles regarding PPE.
“Every piece of that you should treat as if it will have to be turned over some day in litigation. Treat your documentation as if I’m going to have to deal with it during an opening statement to a jury,” Crider said.
“Treat it as if you’re going to have to turn it over to a regulatory body, and ask yourself is this communication sending the right message about our organization’s commitment to put proper PPE in place for the protection of our residents and the protection of our frontline caregivers,” she added.
Skilled Nursing News reported that problems with planning, budgeting, and securing sufficient quantities of personal protective equipment (PPE) to prevent or contain infections and viruses but in the skilled nursing setting, many providers are struggling because of poor planning, inadequate budgets and capitalization, and severe shortages — even as they try to contain a contagious disease that presents known dangers to their patient population. Widespread shortages of masks and gowns, coupled with a lack of quick and accurate testing kits, have prevented many operators’ efforts to prevent the spread of COVID-19 in nursing facilities.
To avoid getting blindsided by legal actions emerging from the COVID-19 emergency, Crider emphasized that SNFs need to document every step they take in providing care. This is going be particularly important because family members are currently not allowed to visit their loved ones, and will not see the care provided firsthand, she said on the webinar.
Plaintiff’s attorneys are already talking about staff who tested positive for COVID-19 and returned to work, operators that continued to admit new patients — especially in the long-term care setting — after a positive diagnosis in the community, and struggles to obtain PPE. That last one is a particularly important point.
“That is being quoted in almost every interview with plaintiff’s attorneys, is the issue of PPE,” Crider said. That makes it all the more important that providers capture their decisions around PPE in writing, especially when it comes to the allocation of supplies to given facilities, she said.
In particular, it’s crucial for SNFs to know how much PPE they’re using, as Melissa Powell, the chief operating officer at the Allure Group in New York, emphasized on the webinar. It’s not just a matter of knowing what PPE is required — especially since most SNFs are ordering items they haven’t had to use before — but also knowing when to order it, she explained. That means knowing the daily burn rate at a facility, knowing how to calculate it, and how that rate will change if a patient comes back positive. And SNFs have to be sure their suppliers are in the loop, and be sure they know what is going out of stock.
She also emphasized the need to stay on top of guidance around PPE, despite the challenges of keeping up with the information coming out of state and federal governments.