Medical Malpractice and Long-Term Care;Part II: Risk Management

This is part II of a two-part article. Part I addressed litigation and appeared in the April issue of the Journal.

Introduction

There has been a significant increase in medical malpractice lawsuits in long-term care (LTC).¹ Therefore, the facilities and the healthcare providers who work in them need to be aware of several important risk management strategies that can reduce their likelihood of being sued for medical malpractice. Good medical practice and medical malpractice risk reduction are congruent activities.² There are, however, several areas of practice where a limited amount of additional attention can substantially reduce the risk of being sued.

Communication

Many aggrieved patients and family members cite poor communication with their healthcare provider as a primary reason they decide to sue. Increasing time constraints may cause some providers to reduce the amount of time they spend explaining an illness, change in condition, or results of a test with their patient or patient’s guardian. Many residents in LTC have medical conditions that are chronic and will almost certainly get worse. Inadequate explanation of the condition may lead to unrealistic expectations of recovery. Many patients in LTC have dementia and are unable to understand the nature of their illness and necessary treatments.

Initial findings and significant changes in condition should be discussed with the patient’s guardian. This is particularly important if a current plan of care is not producing the desired results. Take the time to communicate with the patient or call the patient’s guardian at the time of admission and when there is a significant change in condition or an inadequate response to current treatments. Set some common goals, and if recovery is not anticipated, be sure to address this situation. Conflict may exist between family members regarding the appropriate plan of care. It is good practice to establish one family member as the primary contact person. Occasionally, it may be necessary to sit down with several family members to address particularly difficult issues and work out differences of opinion.

Adequate communication between providers is also important for good patient care and risk management. Notification of significant events should be encouraged. Significant changes and the need to follow up on ordered tests should be conveyed to covering providers. Good communication reduces malpractice cases.³

Documentation

Detailed documentation of care delivered and the plan of care is a key component of risk management. It is disconcerting to see the paucity of detail and the illegibility of most physicians’ notes when reviewing medical records pertaining to a malpractice case. Once again, perceived time constraints may result in a care provider inadequately documenting care. Good medical documentation is important to justify the providers’ professional charges, provide information regarding the case for other providers, and help defend a medical malpractice case should one occur. Illegible, scant, and incoherent notes give the appearance of irresponsibility to the care delivered.

Initial documentation of a new admission needs to be thorough. Indicate in the documentation the sources from which you gathered information and whom you talked to. State the plan of care. Document areas of concern, and if recovery is unlikely and further deterioration is anticipated, be sure to document this and the fact that it has been discussed with the patient or guardian.

The facility will in most circumstances document the provider’s notification of a significant change in condition. The provider should also document this notification. Depending on the nature and significance of the notification, this can be appended to a note the next time you are at the facility, but it may be prudent to document a the call and the plan of care at the time the call is received, and add this separate notation to the record.

Documentation of care relating to high-risk areas for LTC litigation (see below) needs to be particularly thorough.

High-Risk Conditions

Most LTC medical malpractice cases evolve around several medical conditions. It takes only a moment of looking at a plaintiff attorney’s website to know what these are: pressure sores, falls and injuries, malnutrition, and infections.

Pressure Sores
While not all pressure sores are preventable, many are. Though pressure sores may reflect poor nursing care, physicians may be included in medical malpractice lawsuits regarding pressure sores if their response to the condition is felt to have been inadequate. Document your awareness of a patient having a pressure sore. Document the plan of care to improve the pressure sore and prevent additional ones.^4,5 When a patient has a stage 3 or 4 pressure sore, see the patient regularly, and document your findings. Communicate your findings and your plan of care with the patient and/or guardian.

Falls and Injuries
Many LTC residents are at risk of falling and sustaining a resulting injury.⁶ Document that you are aware that the patient is at risk of falling, and document what steps are being taken to reduce the likelihood of a fall. Discuss these risks with the patient and/or guardian. If a patient falls, review the circumstances of the fall and what can be done to reduce further falls. Some patients will continue to fall despite everyone’s best efforts to prevent it. Indicate to the patient or guardian that physically restraining the patient to prevent falls is both dangerous and inhumane, and document these discussions.

Malnutrition
Patients with progressive incurable medical conditions such as dementia, advanced stroke complication, and cancer will often lose weight and develop malnutrition.⁷ Check and see if your patient is losing weight. If there are concerns regarding nutrition, especially in a skilled nursing facility, be sure that a nutritionist is aware and has developed a plan to address the issue. Where continued poor nutritional intake is anticipated, discuss the options for addressing this with the patient and/or guardian. Document directives that may arise from these discussions, such as the desire to avoid artificial means of nutrition.

Infections
Infections are a common reason for a sudden deterioration in LTC residents’ conditions.⁸ Medical malpractice issues arise when the signs of an infection are ignored or an untimely response leads to a poor outcome. The ordering provider and the nurse at the facility should know approximately how long it will take to receive back the results of lab tests and x-rays. If blood draws or x-rays cannot be done on site or can only be done the next day or after the holiday or weekend, the tests should not be postponed for these reasons alone. The hospitalization status of the patient is an important component of an appropriate response. If a patient has a “do not hospitalize” order, this does not mean that no care or testing should be provided, but it clearly does have an impact on where the care is delivered.

Timeliness of Visits

Much medical care of LTC residents can be managed from a distance, but there is no substitute for seeing the patient. Only by interviewing and examining the patient can certain important clinical data be obtained. Visiting the patient and documenting the care delivered also demonstrates the healthcare provider’s direct involvement in the patient’s care. Most states require physicians to see newly admitted nursing home residents within a specified time limit. If the physician does not see the resident within this prescribed period of time and there is an adverse event resulting in a malpractice suit, the case will be more difficult to defend because of this fact. While it is acceptable to manage many acute illnesses in LTC residents by phone or other modes of communication from a distance, if the patient does not respond favorably to the initial plan of care and the condition is not improving or is worsening, the patient should be transferred to an emergency room for evaluation, or a visit to the facility should be conducted and documented.

Accuracy of Admission Orders

Many nursing home residents are admitted after brief hospital stays. The hospital discharge summary and the hospital discharge instructions may be incomplete or inaccurate.^9,10 Medications are often incorrectly listed. It is incumbent upon the admitting nurse and the physician, nurse practitioner, or physician assistant with whom the medications and instructions are being reviewed to ensure that they are correct and appropriate for the patient’s condition. Stating that the referral orders were incorrect will not necessarily help defend against a medical malpractice case if there is an adverse event when the patient is given the wrong medication or when a medication is omitted. For example, just because a patient who has had a recent orthopedic procedure does not have anticoagulation orders as a part of his discharge instructions does not mean they should not be given. Many times, a covering physician reviews admission orders by phone. The same degree of attention to detail is required of this interaction as takes place when the physician reviews the orders in person.

The Medical Director’s Role

Medical directors are playing an increasingly important role in the delivery of care in LTC. They too are being named in malpractice cases, even when they had no direct responsibility for patients’ care. Medical directors should to be aware of the issues addressed above when caring for their own patients. In addition, they need to help develop policies and procedures to ensure that all providers in the facility follow risk-management guidelines. They need to be made aware of process and procedure issues that contribute to adverse events. And they need to ensure that the medical staff and physician extenders who work in the facility meet the minimum qualification standards to safely deliver care at the facility.

Conclusion

None of the above suggestions guarantees avoidance of a medical malpractice suit. However, following some simple risk management strategies can substantially reduce the risk of being involved in medical malpractice litigation. These include improving communication between providers, patients, and their guardians; ensuring good documentation of care; addressing high-risk areas of care; ensuring timeliness of visits; and attention to the accuracy of admission orders.