Cut claims and liability risk with careful planning

Spot danger ahead; teach good risk management

Forget the lottery as your way to riches. According to Judge Judy, The Practice, and countless other television legal shows, you can easily recoup real and imagined losses by suing someone.

Even though popular television shows demonstrate the benefits of lawsuits, a home health agency manager can reduce the risk of being sued by being aware of risks, resolving problems quickly, and communicating with patients and their families, says Tracy Mabry, a health care attorney with Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth in Orlando, FL.

"A malpractice lawsuit against a home health agency is expensive, so it is only in the most serious cases of an unexpected patient death that a family is likely to file a malpractice suit," he says.

A home health manager should be proactive to prevent less serious incidents from becoming major claims, he adds.

The most common areas of risk in home health are slips and falls, burns as a result of overheated bath water, medication errors, and some physical abuse, says Bill Thompson, CIC, senior vice president and partner at Smith, Bell & Thompson, a Burlington, VT-based insurance agency specializing in coverage for health-related organizations.

While a good risk management plan doesn’t always equate to upfront savings, it is important to prevent claims and reduce risk in the future," says Thompson.  

"The most important part of a risk management program is a proactive approach," he says. Make sure your staff education classes emphasize the need to respond quickly to any complaint or to incidents that occur in the patient’s home, he suggests.

"The best way to reduce your risk as a home health manager is to make sure you have well-trained nurses, strong quality-assurance programs, and up-to-date licensing of all appropriate personnel," says Mabry.

Another factor that often exacerbates a situation and may cause the patient or family to file a claim, is a perception that the home health personnel are insensitive to the family’s situation, he says.

"We don’t see significant claims, even when there is an incident, when the home health nurse and other personnel have a good relationship with the patient and family members," Mabry says.

"If the home health personnel are demonstrating concern for the patient and family members while working out a problem, the family is less likely to file a claim or seek a higher judgment," he adds.

When asked why they pursued claims against home health agencies, various plaintiffs told their attorneys that the agency manager and staff seemed, "inattentive, insensitive, and failed to acknowledge that there was problem," Mabry says.

Follow up on incident reports

In addition to making sure your employees are well-trained for their jobs and making sure you have a process to receive complaints and incident reports and follow up on them quickly, take a good look at your hiring practices, says Mabry.

"Allegations of theft and abuse occur more in home health than other areas of health care because it is a unique setting in which the home health employee is working unsupervised in the patient’s home."

Be sure to screen employees carefully, and always run criminal history checks, he says. "Call the agencies for which the employee previously worked." If the person has a pattern of moving from agency to agency, inquire more closely about specific work habits and reasons for leaving, Mabry says.

Make sure your hiring policies spell out the process you undertake to ensure that employees are trained, free of criminal charges, and dependable people, he adds. Then, follow the policy. "Your agency is at risk if you don’t exercise due diligence in hiring and if you don’t follow your policy," he says.

Risk management issues

Also, watch your infection control practices and train employees on infection surveillance and diagnosis. "Infection issues can create serious complications such as high medical costs, amputations, and death," Mabry points out.

As with any aspect of patient care, be sure your nurses are documenting every observation and action taken. "Infections can move quickly, and you have to prove that you observed the infection and took steps immediately to address it," he adds.

Appointing a person within the agency as a risk manager also is a good step to take, says Mabry. "It’s less common for a smaller agency to have one staff position as risk manager, but there should be someone with risk management responsibility assigned to him or her."

Even if the person also handles quality assurance, you can make sure that there is a resource within the agency that is constantly looking for areas of risk for the agency, he adds.

While home health agencies do not have the deep pockets of other health care providers involved with the patient, Mabry points out that family members have different expectations of home health than they have for other health care providers.

"No one expects a home health patient to become sicker or die. Because the person is at home, the family expects him or her to improve, so it’s a shock if there is an adverse event," he says.

[For more information about malpractice insurance and claims, contact:

  • Tracy Mabry, Attorney, Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, 800 N. Magnolia Ave., Suite 1500, Orlando, FL 32803. Telephone: (407) 428-5116. E-mail: tmabry@deanmead.com.
  • Bill Thompson, CIC, Senior Vice President, Partner, Smith Bell & Thompson, Gateway Square, 40 Main St., Suite 500, Burlington, VT 05402-0730. Telephone: 802) 658-4600 or (800) 735-1800. Fax: (802) 658-6191. E-mail: Thompson@sbtinsurance.com.]