AHLA. CC. The Intersection of Regulatory and Personal Injury Litigation Practical Considerations

Transcription

1 AHLA CC. The Intersection of Regulatory and Personal Injury Litigation Practical Considerations Joseph L. Bianculli Health Care Lawyers PLC Arlington, VA T. Andrew Graham Hall Booth Smith PC Atlanta, GA Long Term Care and the Law February 23-25, 2015

2 The Intersection of Regulatory and Personal Injury Litigation Joseph L. Bianculli Health Care Lawyers, PLC Arlington, VA Drew Graham Hall Booth Smith, P.C. Atlanta, GA 1 Strategies for Managing the Reptile Reptiles in Aging Services Cases Regulations and the Reptile 2 1

3 Goals Strategies Reptiles in for Aging Managing Services the Reptile Cases Regulations and the Reptile Understand the Reptile strategy Recognize opportunities to improve outcomes in Aging Services cases Learn strategies to manage surveys in personal injury cases 3 Reptiles in Aging Services Cases 4 2

4 5 "When the reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community." 6 3

5 "When you are in trial, your goal is to get the juror's brain out of fritter mode and into survival mode." 7 Do this by framing the case in terms of reptilian survival. 8 4

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8 Reptile is the response to tort reform Community safety is part of the public policy reason for fair compensation, which is simply a matter of jurors following the law 13 In sharp contrast, tort-reform considerations are legally unrelated to the case, and their purpose and effect have to do solely with jurors violating the law by drawing on improper considerations to undercompensate. 14 7

9 The Reptile Formula Danger Immediacy Rule 15 Danger Immediacy Rule The goal of the Reptile Strategy is to show the immediate danger of the kind of thing the defendant did and how fair compensation can diminish that danger within the community. 16 8

10 Danger Immediacy Rule The Danger Matrix 1) How likely was it that the act or omission would hurt someone? 2) How much harm could it have caused? 3) How much harm could it cause in other kinds of situations? 17 Danger Immediacy Rule 18 9

11 Danger Immediacy Rule 19 Danger Immediacy Rule The Danger Matrix 1) How likely was it that the act or omission would hurt someone? 2) How much harm could it have caused? 3) How much harm could it cause in other kinds of situations? 20 10

12 21 Regulations and the Reptile 22 11

13 Nader s Raiders charge nursing-home neglect 23 June

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15 Nursing Home Quality and Improvement Act (OBRA 87) Betty Hamburger, former Consumer Voice president, presides over event in 1986 kicking off national campaign for nursing home reform

16 The regulations define the danger. 29 The medical record defines the immediacy

17 Defining the rule is the opportunity. 31 Danger Immediacy Rule 32 16

18 Regulations promote safety in nursing homes. 33 They didn t comply with the rules

19 Case Study: Plaintiff s Opening in Pressure Ulcer Case

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22 Regulations drive everything. 41 Nursing Home Quality and Improvement Act (OBRA 87) SERVICES TO BE DELIVERED TO RESIDENTS SURVEY AND ENFORCEMENT REQUIREMENTS 42 21

23 Resident Rights Physical Environment Quality of Life Resident Assessment Survey Quality of Care Resident Behavior Nursing Services Physician Services Dietary Services 43 Resident Rights Physical Environme nt Quality of Life Resident Assessmen t Survey Quality of Care Resident Behavior Nursing Services Physician Services Dietary Services F-TAGs are the surveyors findings of substantial non-compliance with the Conditions of Participation in Medicare & Medicaid 44 22

24 F151 Exercise of Rights F153 Access to Records Resident Rights (F ) F154 Health Status Notice F155 Refusal of Care F157 Change in Condition F163 Right to Choose MD F164 Privacy F167 Access to Survey 45 Quality of Care (F309-F334) F309 Quality of Care* F310 ADL Decline* F311 Care & Services* F314 Pressure Ulcers* F315 Urinary Incontinence F323 Accidents* F325 Nutrition* F327 Hydration* F329 Unnecessary Drugs* 46 23

25 Nursing Services [F ] F353 Sufficient Staff F354 RN Staffing F356 Posted Staffing 47 Resident Rights Physical Environmen t Quality of Life Resident Assessment Survey Quality of Care Resident Behavior Nursing Services Physician Services Dietary Services 48 24

26 Strategies for Managing the Reptile 50 25

27 [1] Understand regulatory impact. 51 Residency Dates Survey Date Identifier Key 52 26

28 Case Study: Dual Track Defense Regulatory Complaint Survey Multiple insured employees interviewed Head of bed down Surveyors cited IJ Insured appeals to Division Appeals Board IJ reversed CMP refunded Civil Family called in complaint Resident aspirated during tube feeding NH reported loss Defense counsel investigated Referred to survey appeal counsel Complaint filed citing IJ as negligence per se 53 [2] Fight critical survey results

29 SoD Issued Days to Months After Event Exchange Evidence 4-6 Months Decision Can Be Another Year Appeal Must Be Filed Within 60 Days After CMS Notice Imposing Sanction Hearing 1 Year or More Board Review Another 6 Months

30 1,291 Aging Services Claims closed between

31 59 Falls Pressure Ulcers Improper Care 72.7% Aging Services Claims 60 30

32 Other 27% Improper Care 16% Falls 37% Falls Pressure Ulcers Improper Care Other Pressure Ulcers 20% 61 For-Profit experience similar to Not-For- Profit for these claims

33 F314 F309 F [3] Build the regulatory record on appeal

34 F314 Pressure Ulcers

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37 F314 F309 F F323 Falls 72 36

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39 75 Fall refers to unintentionally coming to rest on the ground 76 38

40 F314 F309 F F309 Quality of Care 78 39

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42 F314 F309 F

43 [4] Redefine the rule. Assess Revise Unavoidability Care Plan Implement 83 Assess Revise Unavoidability Care Plan Implement 84 42

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46 89 45