So You've Been Sued—Now What?

There may come a day when your facility, management company, owner and even you are served with a lawsuit arising from care delivered to a resident during the continuum of care. This month, special contributor Hunter Carroll, president of Hagwood Adelman Tipton, and I will highlight various protocols for your organization to consider when responding to

  • Medical Records Request
  • Preservation of Evidence Letter
  • Notice of Intent and/or a Complaint 

First, take a deep breath.  You and your team are prepared for this and now is the time to let the process work.  Second, allow your team to work.  Throughout this process, the key objectives are to understand the issues affecting the company, to take action swiftly, and to communicate intra-company and with your attorney. 

Responding to the Medical Records Request

A Medical Records Request (MRR) can be from 1) intermediaries such a social security, insurance company or a subpoena; 2) the resident or family; or 3) an attorney for a resident or family. While there are minor variations in how to respond to these requests, generally, we recommend these events occur during the ten (10) days following a request and lead by the administrative, clinical and health information team.

  • Submit the request to the administrator (subpoena, attorney letter, resident/family or other)     
  • Inform key personnel in your organization (regional administrators, nurse consultants, compliance officer)
  • Obtain all information regarding authority of requesting party (usually a family member) including Power of Attorney, Durable Power of Attorney for Health Care, Probate/Estate Administrator, Guardian, Conservator and deliver that information within 24 hours to the compliance officer and attorney
  • Gather and review significant other information including accident and incident reports, summary investigations, soft files, grievance logs, administrative file, arbitration agreement etc., within 48 hours
  • Obtain a recommendation from your attorney regarding the request and whether the authorization is valid and whether the records should be produced
  • Produce medical records to an intermediary (insurance, disability, social security, therapy) by the facility and per recommendations by the attorney
  • Gather all available medical records for the resident.  These records should include all medical records, including EMR, and all financial and admission records.  As you know, the records are generally maintained throughout the facility and care should be taken to reasonably search for records that may not yet be filed away.  While it is certainly appropriate to supplement the production of records, it is generally best to provide all requested information during the initial production.  
  • Review the medical record,  identify missing documentation and reports, and search and retrieve them within 72 hours
  • Complete a mini-clinical and factual summary including a timeline of significant events/concerns within seven (7) days with a focus on specific issues in the MRR, if identified. Determine if there is any survey activity related to the resident
  • Meet with department heads to discuss identified concerns conduct an Inter-Disciplinary Team Meeting and in-service within 48 hours
  • Secure the medical record with any and all related documentation including overflow in the administrator’s office.  (If the resident currently resides in the building, keep a copy on the unit and secure the original record in the administrator’s office)
  • Forward copies of all applicable information to your attorney (and compliance officer) 

Your attorney will make recommendations for plans of action and further investigation related to the MRR. 

REMEMBER: If the resident’s attorney contacts the facility for status of the records request, call the facility attorney immediately. Always be aware to whom you are speaking and whether or not you are talking to the facility attorney. 

Responding to the Preservation of Evidence Letter, Notice of Intent and/or Complaint

The Preservation of Evidence Letter, Notice of Intent (NOI) to file a Lawsuit, and/or Complaint (lawsuit) most often follow an MRR. Your attorney should be involved, and no facility employee should have contact with plaintiff’s attorneys or discuss matters with the resident/family. If contact is attempted by the resident/family or plaintiff’s attorney, contact your attorney immediately. If the resident continues to reside in the building, communication between family, resident, and staff should continue daily exclusive to the continuum of care.         

While there are minor variations on how to respond to these legal events, we recommend the following:

  • Submit the Preservation of Evidence Letter, Notice of Intent and/or Complaint (“documents”) to administrator
  • Inform key personnel in your organization (regional administrators, nurse consultants, and compliance officer)
  • Examine Preservation of Evidence Letter and identify documents, electronic and hard copy, to maintain, preserve, retain, protect, and not destroy
  • Gather and review significant other information including accident and incident reports, summary investigations, soft files, grievance logs, administrative file, arbitration agreement etc., within 48 hours
  • Review the medical record, identify missing documentation and reports, and search and retrieve them within 72 hours
  • Complete a mini-clinical and factual summary including a timeline of significant events/concerns within seven (7) days with a focus on specific issues in the MRR, if identified. Determine if there is any survey activity related to the resident.
  • Identify significant issues including system concerns and develop and implement a plan to address these issues to include in-service
  • Meet with department heads to discuss identified concerns conduct an Inter-Disciplinary Team Meeting and in-service within 48 hours
  • Secure the medical record with any and all related documentation including overflow in the administrator’s office. (If the resident currently resides in the building, keep a copy on the unit and secure the original record in the administrator’s office)
  • Send documents and all applicable information to your attorney and compliance officer
  • Circulate a “Litigation Hold Letter” regarding preservation of evidence and directives for implementing the company policy on retention to key personnel
  • Complete a summary/outcome of the facility’s internal investigation and submit to your attorney and compliance officer 

Keep in mind that effective defenses and plans are developed long before the threat of a lawsuit ever occurs.  Regularly updated policies, in-service plans and employee education will be requested may be critically reviewed in litigation and, therefore, should be up to date.  

Although prevention is important, legal issues arise even for the most proactive company.  When these issues arise, it will be helpful to create a list of individuals that may have information about the resident, their family or the issues made the basis of the request, if known.  This practice will facilitate the information gathering process and help your team to better understand the (potential) claims.  A designated person within the company, or even your attorney, should reach out to these key people to assess their understanding of the facts.  This is important early in the process before memories fade.  Remember, claims do not get better with time.    

The importance of thorough completion and timely responding to legal requests and actions cannot be over-emphasized. Statutes, regulations, and rules that differ between states govern the time to produce records and respond to subpoenas and Complaints. Having protocols in place will help your organization identify and address risk issues and help facilitate the steps to gather the necessary information. The facility and senior management must be invested in the process so that system concerns, including quality of care, can be promptly addressed. Hagwood Adelman Tipton works with our clients to design and implement plans tailored to each organization’s needs to reduce risk and exposure including the recommended protocols should a legal event arise.


Rebecca Adelman, PLLC, Esq. – Ms. Adelman is a founding shareholder of Hagwood Adelman Tipton, PC and practices in the firm’s Memphis, TN office.  She is the chair of the firm’s Strategic Planning Committee and Women Rainmakers Mentoring Program.  For over 25 years, Rebecca has concentrated her practice in insurance defense litigation representing national insurance carriers and self-insureds with a concentration in healthcare law.  Please feel free to contact her at radelman@hatlawfirm.com

Hunter C. Carroll, Esq. – Mr. Carroll is president of Hagwood Adelman Tipton and a member of the firm’s Executive Committee.  He is a founding shareholder and practices in the firm’s Birmingham, AL office.  In addition to his administrative duties, the majority of Mr. Carroll’s professional time is spent providing defense representation to clients in the areas of medical malpractice, long-term care, and senior care matters.  He represents licensed professionals, including physicians, nurses, therapists and other healthcare providers involved in medical malpractice and medical negligence matters.  He also has extensive experience in the areas of complex defense litigation involving mass tort, products liability, large loss construction defect, and insurance coverage.  Mr. Carroll can be contacted at hcarroll@hatlawfirm.com

Rebecca Adelman