Overview: Sixth annual Litigation Risk and Defense Strategies for Long Term Care & Assisted Living Providers, Insurers, and Brokers Conference

The 2018 Litigation Risk and Defense Strategies for Long-Term Care & Assisted Living Providers, Insurers, and Brokers Conference was a great success and lots of fun! On April 4 and 5, Hagwood Adelman Tipton, co-host firms and a distinguished group of industry experts gathered with our special guests in Houston for the sixth annual conference. More than 100 professionals joined to network, attend education sessions and enjoy Houston, home of the World Champion Houston Astros. There are many stories to tell and we look forward to returning to Memphis, where the conference began, for our seventh anniversary next year. Please mark your calendar for April 3-4, 2019! Stay tuned for details.

Here is an overview of the event. Big thanks to everyone who attended, participated and shared their expertise.

Keynote – Lt. Gen. Russell L. Honoré
Retired Lt. Gen. Russell L. Honoré delivered the keynote address – Resilient Leadership: Prepare Today to Prevail Tomorrow. As the commander of Joint Task Force Katrina, he became known as the “Category 5 General” for his striking leadership style in coordinating military relief efforts in post-hurricane New Orleans. From global and domestic terrorist threats to natural disasters, Honore’ discussed how we encounter new risks daily to our individual, community and economic security. While we can’t predict what’s around the corner, we can prepare – because when faced with seemingly insurmountable challenges, strong leadership guided by clarity of purpose and practical tactics for overcoming adversities drive us to prevail. Honoré expertly connected his more than three decades of military leadership, including his crucial role in managing New Orleans’ relief efforts after Hurricane Katrina, to the natural disasters and man-made tragedies dominating global headlines to reveal critical strategies for transforming individuals into leaders and helping organizations and communities effectively prepare, react, rebound and unify.

Surviving Disaster: What We Know Now
Chastiti Horne, founding partner of Horne Rota Moos LLP, Cornelia Jammer, MPA, professional development specialist at RJH & Associates LLC, and Leah Therio, associate with Cowan Law Firm LLC presented the opening session, Surviving Disaster: What We Know Now. The group shared their experiences with past natural disaster issues and the effects on the long-term care industry. We then navigated through lessons from the past to assist providers with the tools to avoid and prepare for the ramifications of these disasters.

Falls and Infection – Two of the Most Common Risks in Long-Term Care
Falls and Infection – Two of the Most Common Risks in Long-Term Care included panelists Dr. Keith David Bjork and Dr. Carl Vartian. This presentation focused on falls and infections, two of the most prolific risk issues in long-term care settings. Dr. Bjork, an orthopedic surgeon, and Dr. Vartian, an infectious disease expert, provided necessary tools to prevent and defend these claims via risk management strategies. They also provided current methods to assist facilities in navigating and identifying potential issues.

Social Media Risk Management and Best Practices
Beth Berger, managing director of Gallagher Healthcare; Jeff Mongrelli, CEO of Acentec; and Amy Evans, executive vice president of Acentec, presented Social Media Risk Management & Best Practices. These thought leaders defined social media and outlined the benefits and risks involved with the platforms. They explained how to respond to negative posts, best practices for social media management and real-life examples in the health care industry.

Understanding Audit Trails and Discovery Preservation – Staying Ahead of the Game
I presented this topic. In the world of medical malpractice litigation, the resident/patient medical record is exhibit No. 1. I cannot overstate the importance of health care records in defending long-term care lawsuits. From its completeness to each chart entry, plaintiff and defense attorneys, experts and provider witnesses scrutinize the health care record. In every case, the health care record’s integrity is a central issue with many challenges as to the care provider’s liability, causation and damages. In this presentation, I highlighted the current and emerging risks associated with electronic medical records (EMRs) as they relate specifically to litigation, metadata and audit trails. We learned about the duties imposed on nursing homes by state and federal legislation and rules to implement technical safeguards for electronic information systems, including EMRs. The program included objections to production of information in medical malpractice lawsuits and case studies. The evidence developed related to the audit trail will be central to the development of the lawsuit and themes that will emerge. We also discussed how increasing awareness and best practices regarding EMR documentation will enhance the defense of the chart and the lawsuit.

Litigation Hold and Spoliation: Preserving and Protecting
Michael Goodin, managing attorney at Hagwood Adelman Tipton PC in Memphis joined me for a presentation on Litigation Hold and Spoliation: Preserving and Protecting. Spoliation of electronic evidence can be a relatively common occurrence. Many companies routinely delete ESI as part of document retention policies. For that reason, in litigation involving the production of electronically stored information, a litigation hold letter is an essential tool for parties to pin down their opponents and prevent ESI destruction. In this program, we learned about a litigation hold letter, when the hold takes effect, the scope of the litigation hold and best practices for implementation. The destruction of, alteration of or failure to preserve evidence is referred to as spoliation.  Courts have the ability to impose a variety of sanctions against a party for spoliation of evidence, regardless of whether the spoliation was intentional or negligent. Spoliation of evidence may result in monetary sanctions, issue sanctions, evidentiary sanctions or, in the case of egregious intentional spoliation, even terminating sanctions. A defensible litigation hold protocol will be presented along with form letters and policies. The program provided a comprehensive approach to evidence preservation best practices.

When Hospice Care Results in a Hospice Case
Improving End-of-Life care: Strategies and Best Practices

Steven Weiner and Jonathan Rubin, partners at Kaufman Borgeest & Ryan LLP and Njoki Wamiti, vice president at IronHealth, presented these compelling topics. The traditional view has been that lawsuits arising out of care provided by hospice providers would not be pursued by plaintiff’s attorneys given that such patients are typically viewed as being terminal and at the end of their lives. At one time, that was also the perspective as it pertained to commencing suits on behalf of the elderly against nursing homes.

As there has been a sea change in regard to the exposure of nursing homes to lawsuits, there is an evolving view that hospice providers can prove fertile targets as well. Given the large number of providers offering such services, as well as a governmental focus on reimbursement for hospice care, lawsuits are increasing. This lecture section focused on the nature of the services provided in a hospice setting and the types of claims and litigation concerns that can arise as a consequence of the provision of hospice care. The session also explored the current state of end-of-life care in the United States and key recommendations to ensure individual preferences for care are honored near the end of life. Rubin also reviewed lessons learned from New York’s MOLST program, a founding member of National POLST Paradigm. He explained how eMOLST improves quality and patient safety, ensures accessibility and achieves the quadruple aim.

The Unique Role of Legal Nurse Consultants
Alicia Luke of ALN Consulting described The Unique Role of Legal Nurse Consultants. Why do we still think that all pressure ulcers are the fault of nurses when a 2010 prospective study funded by the U.S. Department of Justice proved they can happen under the best of care?

Pressure Ulcer/Pressure Injury: An Old Problem, New Term, Big Implications
Caroline Fife, M.D., chief medical officer at Intellicure, Inc., was a show-stopper with her presentation and deep dive into Pressure Ulcer/Pressure Injury: An Old Problem, New Term, Big Implications. I urge you to research Dr. Fife’s wealth of research and writings shining the light on wound care management.

Chronic wounds affect 15 percent of Medicare patients and may cost $96 billion per year. Pressure ulcers affect 1.8 percent of the Medicare population and conservative estimates show they cost about $3.9 billion in 2014. The Deficit Reduction and Reconciliation Act of 2005 required that, by 2007, CMS should identify conditions that were high cost, high volume or both. This resulted in the assignment of a case to a DRG that has a higher payment when present as a secondary diagnosis and could reasonably have been prevented through the application of evidence-based guidelines. CMS selected eight such conditions, four of which were classified in the federal register as “serious preventable events” (aka “never events”). Pressure ulcers are found under subpart (F)(b) "Hospital Acquired Conditions" but not under Subpart (F)(c) "Serious Preventable Events." That section begins AFTER pressure ulcers are discussed, when the topic changes to retention of foreign body in a surgical patient. That means that pressure ulcers are not “never events.”

However, the National Quality Forum classifies pressure ulcers as “serious reportable events” that are always the result of poor care. Dr. Fife illustrated her points and provided arguments supporting her various arguments that can be used by defense counsel.

Day one of the conference ended with a delicious and entertaining dinner event at Pinkerton’s. The food held true to the restaurant’s motto – “This is barbecue as it should be.” The cake and pie were as they should be, too!

Snakes in the Courtroom: Charming the Reptile Theory
Day two started with a delicious breakfast and followed by a moderated panel led by Mario Giannettino, attorney at Kaufman Borgheest & Ryan LP and including Thomas Cowan, partner or Cowan Law Firm LLC and Janet Walsh, vice president, product manager healthcare at Swiss Re on Snakes in the Courtroom: Charming the Reptile Theory. Reptile theory is touted as a revolutionary trial strategy that influences jurors to believe the conduct of the defendant poses a safety risk to the community at large. In the context of medical malpractice and long-term care defense, reptile theory seeks to replace the reasonableness standard of care with safety rules. In this program, we learned how to recognize and prepare for the reptile theory during all phases of litigation, including the pleadings, discovery and depositions. Panelists presented the information through real-life case examples and the experiences of leading professionals in the insurance and legal fields, and they provided tactics and techniques on how to undermine the reptile during voir dire, opening and closing statements.

Sexual Harassment and the #MeToo Movement
Joan Gilbride, partner at Kaufman Borgheest & Ryan LLP and Cassandra Ferguson, vice president of RSUI Group, Inc., presented our final session on the subject of Sexual Harassment and the #MeToo Movement. This presentation examined the #MeToo movement and its potential impact upon sexual harassment claims against employers. The presenters explored the prevalence of sexual harassment in the workplace as well as what responsible employers can do to promote a civil working environment and avoid the expense, disruption and negative consequences that flow from sexual harassment in the workplace.

Panelists also discussed legislative responses to the #MeToo movement and what employers can expect to hear from their insurers in the wake of recent headlines.

In closing
The conference delivered on its promise of outstanding, in-depth education by thought leaders and experts. We also had loads of fun and strengthened our relationships through personal time together learning and growing. We are already planning our seventh anniversary event in Memphis!  Please plan to attend, as we will have some special events with blues and barbecue and as always, relevant and thought-provoking topics.

Rebecca Adelman, PLLC, Esq. - Ms. Adelman is an entrepreneur and founding shareholder of Hagwood Adelman Tipton, PC and practices in the firm’s Memphis, Tennessee, office. For nearly 30 years, Rebecca has concentrated her practice in insurance defense litigation representing national insurance carriers and self-insureds with a concentration in health care law. She also has an active business and employment practice. Please feel free to contact her at radelman@hatlawfirm.com, visit www.rebeccaadelman.com or follow her on Instagram @rebecca_adelman.

Rebecca Adelman