Use of text messaging in the health care industry has increased between health care providers, patients and other stakeholders. In her latest article, Rebecca Adelman reviews the HIPAA and HITECH Acts to encourage safe, ethical communication in relation to text messaging.
Each year, Aon Global Risk Consulting’s Actuarial and Analytics practice conducts an actuarial analysis of general liability and professional liability claim costs for the long-term care profession in the United States. Rebecca reviews the conclusions from the 2018 report, along with essential insurance policies for the senior housing industry.
An important issue in health care litigation is the individual’s right to access health information and the associated legal and regulatory considerations. In this column, Rebecca explores the HIPAA Privacy Rule that provides a legal, enforceable right to see and receive copies of medial and other health records maintained by health care providers and health plans.
On March 6, 2019, the Senate Finance Committee heard testimony on reported instances of abuse and neglect in nursing homes and on the federal-state oversight system’s enforcement of laws and regulations designed to prevent these situations from developing. Rebecca provides an overview of witness testimony.
In Feb. 2019, the Department of Health and Human Services Office of the Inspector General issued “CMS Guidance to State Survey Agencies On Verifying Correction of Deficiencies Needs to Be Improved to Help Ensure the Health and Safety of Nursing Home Residents.” Rebecca reviews this report in this article.
Over the past few months, numerous hurricanes have caused catastrophic damage. In the senior-housing community, this can lead to trauma and displacement among residents and loss among families and employees. In collaboration with Robert Young, International Goodwill Ambassador for Blue Team Restoration, Rebecca takes a look at the actions needed to accurate prepare for emergency situations.
As the population across the country ages, assisted living continues to grow in popularity. Resident care litigation risk has been emerging with more frequency as the mission and vision of assisted living communities evolve. Aging in place is a central philosophical aim of the assisted living movement, and the acuity levels of residents are higher and needs are increasing through the residency.
The long-term care industry is founded on the desire to create a bright future for everyone, regardless of identity. Rebecca, as a lawyer, advocates for equal protection for all older adults and has witnessed the diversity movement be driven by legal compliance in employment law and health care areas of practice.
In Oct. 2018, the U.S. Department of Health and Human Services and the Foundation for the National Institutes of Health (through private sector support) held its first National Research Summit on Care, Services and Supports for Persons with Dementia and their Caregivers (the Summit). The report to the Advisory Council on Alzheimer’s Research, Care and Services presents the results of the Summit.
The recent case of EPAC Technologies, Inc. v. HarperCollins Christian Publishing, Inc., 2018 WL 1542040 (M.D. Tenn. March 29, 2018) provides a detailed example of the pitfalls of an inadequate litigation hold and the complexities of preserving ESI. The case revolves around a contractual dispute between a book publisher and a printing company, and it provides an interesting case study in the application of the changes to the Federal Rules of Civil Procedure governing spoliation of Electronically Stored Information (ESI).
Image courtesy of Huebi | Wikimedia Commons
In C.D. et. al. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, plaintiff, a minor, was a resident of Mountain Youth Academy, a trauma-focused residential treatment facility. The plaintiff got into a physical altercation with an employee of the defendant, Mountain Youth Academy. The complaint alleged, among other things, that the employee pulled the minor plaintiff to the ground and stomped on his foot, causing him injury.
The defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. The defendant argued that because of plaintiff's (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (THCLA), Tenn. Code Ann. § 29-26-121 (Supp. 2017), and (2) the plaintiff's failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that the plaintiff's claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but it did so without prejudice. The defendant appealed, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, the plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action.
The Court of Appeals held that the plaintiff's claims for assault and battery were unrelated to the provision of, or failure to provide, health care services. Therefore, the plaintiff's assault and battery claims did not fall within the ambit of a “health care liability action” as defined by the statute and that the plaintiff's direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony was not required and the plaintiff's claims were not required to file a good faith certificate with the complaint as to that claim. Therefore, the Court of Appeals held that mother’s failure to provide the defendant with pre-suit notice mandated a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice.
The court’s decision in C.D. v. Keystone provides further evaluation and assessment of whether a claim falls under the Tennessee Health Care Liability Act and when a good faith certificate is required for certain claims. Moving forward, the court’s decision will likely be used by plaintiffs to show that additional claims can be brought in a case involving a THCLA claim and that all claims against a health care provider do not necessarily fall under the THCLA. The court’s opinion also attempted to clarify the issue of whether a negligent supervision claim should fall under the THCLA. However, the court’s opinion is still vague as to whether the negligent supervision claim should be brought as a separate claim in the complaint or a theory underlying a claim for violation of the THCLA.
The 2018 Litigation Risk and Defense Strategies for Long Term Care & Assisted Living Providers, Insurers and Brokers Conference was a great success and a lot of fun! On April 4 and 5, 2018, Hagwood Adelman and Tipton, cohost firms and a distinguished group of industry experts gathered with our special guests in Houston for the sixth annual conference.
Each year, the Institute for Healthcare Improvement’s United for Patient Safety campaign culminates with Patient Safety Awareness Week. In 2018, Patient Safety Awareness Week was March 11-17, designating time and a platform to increase awareness about patient safety among health care professionals and the public.
In Feb. 2018, HRW published a 157-page – “‘They want docile’: How Nursing Homes in the United States Overmedicate People with Dementia.” The report documents, per HRW, nursing facilities’ inappropriate use of antipsychotic drugs in older people, as well as the administration of the drugs without informed consent. While report uncovered a troubling trend, HRW does not reference the more than 16,000 nursing facilities providing long-term care services and support to meet its patients’ needs and respect their rights.