CHAPTER 24

Note: It is not the intent of this chapter to provide legal advice but only to suggest some practical considerations for coping with and reducing the risks of litigation. For actual advice and guidance in the planning or litigation areas discussed, the reader should seek professional con- sultation with a competent financial planner, insurance professional, or attorney.

More than ever before, today’s legal environment exposes registered dietitian nutritionists (RDNs) to the risk of litigation. RDNs need to embrace the opportu- nity for making positive changes in their role, image, and financial status. Those practicing in long-term care must realize that they are the nutrition experts and thus take on related responsibilities. They must provide state-of-the-art advice, documentation, education, and consultation. Today, information on the Internet is easily acces- sible to patients and family members who investigate their diagnoses and arrive at medical appointments armed with research studies. However, individuals often are unable to comprehend the information and implications presented in these studies or even deter- mine whether the material is accurate. Patients and their families are often confronted by plaintiff attor- neys seeking to represent those who were possibly harmed in a medical facility, changing models in long- term care, whistle-blowers, media interest, and reduced payments. This may create unrealistic expectations in the long-term care environment and has resulted in an increase in the number of lawsuits and the number of RDNs who are involved in these cases (1-3). When harm is alleged, a claimant’s attorney may seek to join every party, including dietetic providers, in an effort to increase the possibility of financial settlement. On occasion, every provider who has written medical documentation in the plaintiff’s chart

Understanding the Risks for Litigation

is named as a party to the lawsuit. Insurance coverage laws, reduction in reimbursement rates, and financial burdens often reduce the amount of coverage that many long-term care providers carry and/or can afford. For example, if a facility has only a $250,000 policy, a plaintiff’s attorney may look for other avenues that will return viable and substantial recovery rates. This may include the RDN and other individuals involved with the plaintiff’s case.

The incidence of litigation in the long-term care industry has dramatically increased since the late 1990s (2,4-7). Laws vary from state to state, depending on whether the state has gone through a period of tort reform. Several law firms suggest that nutrition is a central issue in more than 50% of all litigation involv- ing assisted-living and skilled nursing facilities (8). In today’s legal arena, lawsuits involving unintended weight loss, pressure ulcers, dehydration, and malnutri- tion are common (5,6). Debilitating diagnoses, such as cancer, diabetes, Alzheimer’s disease, stroke, and heart failure, all have nutrition components, so it is medi- cally appropriate to include RDNs in cases when wrongful death, malpractice, or negligence claims arise.

The increase in nutrition-related recovery rates and litigation is a double-edged sword for individuals practicing medical nutrition therapy (MNT). Nutrition is receiving increased attention from the Centers for Medicare & Medicaid Services (CMS), attorneys, long-term care corporations, legal nurse consultants, and clinical staff. On a positive note, the increased attention sets the stage for improvement and recogni- tion of the role of RDNs in bettering quality of life and quality of care for the residents, thus reducing the overall risk of litigation to the facility. At the same time, however, the increased attention has also placed RDNs at risk for professional and personal litigation, which increases stress and financial risks.