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Don’t destroy those documents!

By Heather Brown
October 20, 2014

My coach often told us, “The best offense is a good defense!” It seems kind of strange to think that this saying can be carried to adult residential care communities; however, it is one of the most important things an adult residential care can do to stay out of a court room. The following claim could have had a completely different result had documentation been preserved regarding the resident.

A Dementia plaintiff had cardiac catheterization, and was re-admitted to the facility on November 12, 2004. The resident was found unresponsive on Nov 22, 2004, and he died the next day, due to a cerebral hemorrhage, due to a Coumadin overdose.

The facility had no authority to render medical treatment or services, outside the very limited area of complying with the timing and administration of medications per doctor’s orders. There is no indication that the insured administered the wrong dosage. The critical factual issue for the facility is the determination of where the Nurse (employed by co-defendant) obtained her information about the Coumadin dosage and did she have a right to rely on that source. Overriding that issue is the co-defendant Dr. X’s failure to meet the standard of care when he prescribed Coumadin on Nov 16, 2004.

The facility’s exposure is derived from the failure of the staff to communicate the proper dosage information. The insured says that they did not know about the Coumadin until Nov 16, 2004. The Nurse testified that the facility personnel told her that the resident was on 5 mgs daily.

This confusion could lead a jury to believe that the Doctor’s confusion about the Coumadin dosage came from the Nurse, who got it from the Facility. Originally the claim appeared moderate with expenses to be around $27,000, and indemnity estimated at $50,000.

Litigation involving multiple defendants is always protracted and very expensive.

However, on October 27th, 2009, the claim took a turn for the worse.

Trial was set for Nov 4, 2009. With a pre-trial set for today, October 27th, 2009. All along, the plaintiff’s thrust seemed to be aimed at whoever passed on the dosage information. However, in the past few days, the plaintiff attorney has made it clear that his strategy at trial will be to blame the insured for giving the resident an overdose of Coumadin. It is clear from the hospital records that the resident did indeed have far too much Coumadin in his system.

In addition, there is a spoilation problem, in that the facility destroyed their records regarding how much drug the resident was given. The reserve was increased from the estimated $50,000 to $400,000 as a result of this new finding of lack of documentation. In addition, after the pre-trial. It became obvious to the defending attorney that the other 3 defendants had recently agreed among themselves to gang up on the facility and to try to shift the bulk of the liability to the facility.

The Plaintiff attorney then made a demand for $950,000. The judge thought it would take $500,000-$600,000 to settle the claim, however, only through serious negotiations will the real value of the Plaintiff come out.

On November 1st, 2009, the claim settled for $750,000 with $125,000 being paid by the co-defendants. Had documentation been retained by the facility regarding the medical and medication records of the resident, this claim could have taken a complete different turn. Do not under estimate the value of good documentation and record keeping or undervalue the retention of these records.

DOCUMENT TO DEFEND

Records are a durable account of what has happened. Courts may place more trust in records than in a witness words, often referred to as “hear say”. This may be true because documentation is an immediate response, and a witness may be recollecting long after the event is fresh in the witness memory. In addition to background material, treatment plan, record of treatment interventions, progress notes, critical incident reports and routine information, the record should contain documentation of all unusual events.

For more information, and a template for documentation Procedures and Policies, visit the PCALIC website at http://www.pcalic.com; enter through the member login, under the “Member Insured Menu” select “Risk Management”, then click on “Documentation and Records”. In my years of providing protection for adult residential care communities, I have found that it pays many times over to be proactive rather than reactive.

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