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Don’t Destroy those Documents!

By Heather Brown
October 19, 2014

…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 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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