Chapter 24 Understanding the Risks for Litigation IDENTIFYING THE ELEMENTS FOR

SUCCESSFUL LITIGATION In general, for successful litigation, it is necessary for the plaintiff to meet several criteria, including any combination of the following (9):

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Harm to the resident (ie, a negative outcome has occurred, and this is reported in the clinical record documentation):

➤ ➤ Harm was preventable.

The facility knew or should have known that something bad could happen.

● Facility responsible for poor care delivery: ➤

“Duty” was breached to the resident, in that something that was needed was either not done or done poorly.

➤

The conduct, whether by mistake or omission, caused or contributed to harm (eg, the resident would not have developed a pressure ulcer, unintended weight loss, dehydration).

● Deviation from the standard of care.

ENSURING OPTIMAL PROTECTION RDNs should protect themselves for optimal legal safety by staying current in their field, using proper documentation, and obtaining adequate malpractice insurance. Dietetic practitioners’ professional liability insurance (also called malpractice insurance) helps to protect personal and professional assets (10). Many companies offer professional liability insurance on a national basis. It is important to obtain an insurance plan that meets the professional, financial, and personal needs of the person obtaining the insurance. In addition, many institutions and corporations carry umbrella policies that may cover all employees, and it is important for RDNs to know whether they are included in such coverage. Contractors, subcon- tractors, and independent consultants are at a greater risk for lawsuits than employees who are possibly insulated from risk by the employer. By joining the RDN in litigation instituted against a facility, the facility may attempt to share its losses. RDNs should not overlook that they may receive minimal legal support from the facility in efforts to limit the facili- ty’s own liability. In any event, a professional liabil- ity policy can provide needed protection, security, and peace of mind. Adequate protection is well worth what is usually a proportionately reasonable fee. Consultation with an attorney who practices in the area of financial or estate planning sometimes is neces- sary in cases that have significant assets and complicat- ing factors. In circumstances in which one’s net worth is substantial (eg, exceeding $1 million personally or

MAKING SURE CONDITIONS FALL

WITHIN ACCEPTABLE PARAMETERS RDNs can protect themselves by not accepting con- tracts where the hours are insufficient to properly care for the number of residents in the facility. Before agree- ing to a certain number of contractual hours, RDNs should perform an evaluation of the acuity of the resi- dent population. Factors to consider include the number of residents on enteral or parenteral feedings, the number of residents with chronic wounds and pressure ulcers, the number of residents experiencing involun- tary weight loss, and the number of new admissions per month. Negotiating for an adequate contract that allows each resident sufficient time is of utmost importance. Many lawsuits claim inadequate staffing as a contribut- ing factor to the problem, making it not unusual to subpoena time cards, attendance records, and contracts (6,11).

STAYING CURRENT IN THE FIELD OF DIETETICS

All RDNs can reduce the risk of litigation by keeping abreast of regulatory and practice standards in their prospective fields. For example, it is possible that the RDN who receives calls or referrals from the nursing facility staff but does not address or document a plan of care clearly and in a timely manner may have devi- ated from the local standards of care. Such a deviation could attract the attention of a plaintiff attorney and is possibly seen as causing or contributing to the alleged damages. Effective care demonstrated by documenta- tion is key to avoiding litigation. The medical records, Minimum Data Set, Resident Assessment Instrument process, and care plan are the primary tools of clinical care and communication (12).

It is essential that RDNs know the acceptable doc- umentation practices. RDNs should follow these suggestions:

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When identifying a problem, also propose a timely intervention.

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Keep track of successful treatment and positive contributions of teamwork by other medical

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jointly), professional liability, an umbrella policy, and legal financial planning are necessary. The personal and jointly held assets of the RDN and the RDN’s family can become at risk if the RDN is sued individually. Several strategies exist to protect finances. Each RDN’s personal and professional situations differ. Therefore, they should consult with an attorney and/or an accoun- tant to ensure that their family assets are insulated and separated from their professional assets.