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Nursing Home Litigation Manual

By Mollie E. Werwas, Mark J. Kimzey, and Sean D. Hurley

Nursing homes provide a valuable service for some of the most care-dependent individuals in our society.  And yet, nursing homes and long-term care facilities face a myriad of challenges in the current legal environment.  Facilities are called upon to care for an increasing number of residents, with greater regulatory oversight, fewer qualified staff members, limited budgetary resources, heightened “customer” expectations, and countless other issues.  For the populations served by nursing homes and long-term care facilities, complex medical conditions, as well as the normal aging and dying processes, often create significant risk of injuries, infection, and other unpleasant conditions that can be unavoidable with even the best care.  Nonetheless, the perception amongst many families and, sometimes, residents themselves, is that any negative incident, event, injury, or medical complication experienced in a nursing home or long-term care setting must be due to fault on the part of the facility or its staff.  As a result, litigation becomes a frequent challenge for nursing home and skilled facility administrators.

The Kopon Airdo, LLC Nursing Home Litigation Manual is designed to provide administrators and staff members of nursing homes and long-term care facilities with a legal perspective for identifying and managing risk, based on issues frequently seen in the defense of nursing homes and long-term care facilities, as well as a greater understanding of the litigation process.  While a nursing home or long-term care facility cannot prevent litigation in every instance, there are many steps that a facility can take to best position itself to defend against litigation, and to minimize risk and loss.

Please contact Mollie E. Werwas at (312) 506-4474 or [email protected] to request a copy of the 2018 Nursing Home Litigation Manual.

TABLE OF CONTENTS

INTRODUCTION

SECTION I: The Nursing Home In Litigation

Causes of Action 

A. The Illinois Nursing Home Care Act

B. Negligence

C. Willful and Wanton Conduct

D.  Medical Malpractice

E. Wrongful Death Act and Survival Act

Liability for the Nursing Home Team

Records Requests

Litigation Process

A. A Lawsuit is Filed: Controlling Initial Communications

B. Litigation Holds and Record Preservation

C. Litigation Overview

D. Pleading

E. Discovery

Written Discovery

Oral Discovery

F. Motion Practice

G. Settlement

H. Alternative Dispute Resolution

Mediation

Arbitration

Informal Negotiation

I. Final Pre-Trial Motions and the Role of Administrative Regulations at Trial

J. Trial

K. Appeals

SECTION II: Managing Risk While Providing Care

Nursing Home Policies and Procedures

A. Documenting Policies and Procedures

B. Important Policies and Procedures from the Litigation Perspective

Care Plans

Falls

Transfers

Medication Administration

Abuse and Neglect

C. Maintaining Copies of Policies and Procedures

D. Educating Staff on Policies and Procedures

E. Enforcement, Compliance, and Re-Education

New Residents

A. Important Details to Document

B. Communications with the Family

C. Consent Forms

D. Document ID of POA

Care Plans

A. Development of a Care Plan

B. Importance of Using Care Plans

C. Care Plans in Litigation

Documenting Care

A. The Nursing Home Chart

B. Components of the Nursing Home Chart

C. Documenting in the Nursing Home Chart

D. Documenting Communication

E. Documenting Resident Non-Compliance

F. Documenting Resident Discharge

G. Record Keeping by Certified Nursing Assistants

H. Items to Avoid in Charting

I. Documenting Care for Particular Conditions

Common Care Issues Giving Rise to Liability

A. Skin Breakdown

B. Hydration & Nutrition

C. Choking/Aspiration

D. Falls

SECTION III: OVERLAPPING ADMINISTRATIVE AND LEGAL MATTERS

Surveillance

A. Surveillance Equipment

B. How to Use Surveillance

C. Surveillance Policies and Procedures

D. Investigation Using Surveillance

E. “Granny Cam’s”

F. Resident Consent

G. Roommate Consent

H. Facility Requirements

I. Notice to All Persons

J. Actual Use and Maintenance of the Devices

K. “Granny Cam” Checklist for Illinois Nursing Homes

L. Preservation of Surveillance and Other Evidence

M. “Spoliation of Evidence”

Segregating and Retaining Evidence as Part of an Investigation

A. Investigation and Evidence Policies and Procedures

B. Practical Tips for Evidence Preservation

C. Items to Consider in Deciding When to Preserve Evidence