Avoiding negligence traps

Policies and advertising count in court

"Determining negligence is simple to a lawyer," attorney John Gilliland II, says. "But to most people in health care, it seems complex."

Gilliland, who specializes in legal issues surrounding home health care, defines the term malpractice as a euphemism for negligence. "Basically, we use the same legal negligence test for health care as for an auto accident or a slip-and-fall case," he says. "You have certain elements that have to be proved to establish liability for negligence.

Gilliland says negligence requires the proof of these four elements:

1. There must be a duty. "You have to establish that a duty was owed," Gilliland says. "The duty arises when a professional relationship begins, which in home health care, is usually admission of the client or patient to whatever home health care services the agency provides."

2. The duty must be defined. "What is the duty? It is to exercise reasonable care in providing services to the patient," Gilliland says. He notes that in most health care cases, the legal definition of reasonable care is established by looking at what others working in the same field would do given the same circumstances. "You’re compared to your peers, and this is one instance in which malpractice is a little different from a normal negligence suit." He points out that in an automobile accident, every person who would be on a jury knows that when you come to a stop sign, you must apply your brakes to stop.

However, in a case involving professional care, establishing a duty often involves testimony from expert witnesses called to define those things that should be done. "The expert is there to assist the jury," Gilliland says, "because it’s assumed the jury doesn’t really understand the practice of nursing, for example."

3. Reasonable care must have been breached. Did the agency exercise reasonable care?

4. There must have been damage. Did the breach of the duty cause damages that can be compensated in money?

"When most people talk about negligence," Gilliland says, "what they really mean is, Did I have a duty and did I breach it?’ But in the law, if there is no damage to the plaintiff, the case is going to be thrown out."

Plaintiffs have to prove it all

When plaintiffs sue a home health agency, they have to prove all four of those elements. "If the agency can knock out any one of these, it’s won the lawsuit," Gilliland says, "but the plaintiff must prove all four." He points out that an agency’s internal policies can be introduced as legal evidence of the standard of care the agency has agreed to provide.

"You may establish a standard of care that is higher than what would otherwise be required," he says. "If your policies say you shall or will do things, you should expect to be bound by that in court."

Advertising is more than just getting the word out. It’s also potential evidence should your agency fail to fulfill your claims. "Saying, We offer the best care east of the Mississippi’ means you have increased the standard of care you offer," Gilliland says. "You’ve said it’s not just reasonable care, it’s the best!" Gilliland says that both private duty home care agencies’ advertising and policies can come back to haunt them.

"When you are writing either, take into account that you may be held to it in a court of law," he says. "A lot of the problem is the adjectives and adverbs you choose."

He also cautions that licensure standards are binding, as well. "They’re not just there so you can get something nice you can put on your stationery. They can come back as evidence of the standard of care you must meet, and that may be higher than what would otherwise be the case because you’re saying, I’m accredited, therefore I’m better than average,’ and that’s offering an assurance of quality."

Insure yourself

Gilliland emphasizes that the one thing most businesses need to be sure of is carrying adequate malpractice insurance so that if they are sued they have protection. The agency must also decide whether to provide malpractice insurance to its employees or require them to carry it on their own. He says that a companion or home health aide really isn’t practicing a profession, so the issue is normal negligence, not malpractice, but agencies should address insurance for the negligence of their employees. "There’s one kind of insurance coverage many agencies don’t have, but really ought to, and that’s nonowned auto coverage," Gilliland says.

He points out that home care often involves lots of driving, and typically employees drive their own cars, not agency vehicles. If an employee is in an auto accident, both the employee and the agency will be sued because the employee was driving as part of their duties for the agency. Nonowned auto coverage protects the agency.

"It takes very little to be sued, and it’s very important to get insurance in place," Gilliland says. "You might win without it but feel like you’ve lost due to the attorney’s fees. When you have insurance, it pays the fees your defense."

John C. Gilliland II, Gilliland & Associates, 211 Grandview Drive, Suite 205, Covington, KY 41017. Telephone: (606) 344-8515. Fax: (606) 344-8516. E-mail: jcg@gilliland.com. Web site: www. gilliland.com.