Preventing, Documenting, and Responding to Incidents in a Litigious Society

Aug 17, 2020 | Business, Health Care, Litigation

When an incident occurs or a family is unsatisfied, the difference between a skilled nursing facility staff that is well prepared and a staff that is unprepared and poorly trained can be a deciding factor in the outcome. No two incidents are the same, but proper preparation can ensure that concerns are addressed appropriately in today’s litigious society. Accidents typically are not preventable. An accident is defined as an unexpected, unintended event that can cause a resident injury, such as a fall or motor vehicle crash. An incident is an event that can cause a resident injury, such as an elopement, resident to resident altercation or medication error. Skilled nursing facilities can and should prepare for incidents.

Three large risks to a skilled nursing facility are loss of life and injury, litigation, and lawyers. When incidents occur and result in major injury or death of a patient, the likelihood of litigation increases substantially. Litigation heightens the cost of the incident to the organization, particularly for self-insured facilities. It is more cost effective for a facility to proactively work with their staff and attorneys to prevent and prepare for incidents than it is to react to resulting litigation.

The best way to mitigate risk stemming from incidents is to prevent them from happening. While it isn’t always possible to prevent incidents, having in place good policies, procedures, and training takes the guesswork out of what to do when an incident does occur. Enacting good policies and procedures and properly training employees in the standard of care and how to respond to incidents is crucial to mitigating risk when incidents do inevitably occur.

A thorough investigation and report are essential to proper incident management. Three critical components of an investigation are: (1) the objectivity of the investigator; (2) the timeliness of the initiation of the investigation; and (3) the thoroughness of the investigation. Investigations should be completed as soon as possible after an incident. Not only does an incident investigation evaluate what occurred, it provides a mechanism for facilities to evaluate any necessary changes.

All incidents and investigations should be documented in a written report. A good incident report is: (1) written objectively; (2) incorporates patient and witness accounts of the event into the report; it does not assign blame; (3) avoids hearsay and assumptions; and (4) is completed quickly.
While tragedies and lawsuits can’t always be prevented, particularly in a high-risk, litigious setting, handling incidents appropriately is often the difference between the success or failure of the facility.

Competent legal counsel can help you navigate all aspects of running a successful nursing facility, including making sure you are well equipped to handle incidents. Contact Smith + Malek to learn more about how we can help.