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Fall management: Post-fall root cause analysis and disclosures

The Senior Advisor: Season 1, Episode 8

December 19, 2023

A podcast series on issues facing the senior living industry, exploring risk management solutions, and hot topics critical to senior living operations.

It is essential to provide clear and concise information about a fall event. In the final episode of our five-part mini-series on fall management, Rhonda and guests Maria Wood, an attorney at Hall Booth Smith and Joan Porcaro, Client Relationship Manager at WTW walk the listener through a post-event root cause analysis and disclosure. This episode discusses the importance of timely disclosure and conducing the root cause analysis post-event to identify the cause of the resident fall. Our guests also dive into the importance of keeping open lines of communication with the resident and family members in mitigating lawsuits and reputational risk.

The Senior Advisor — Season 1, Episode 8: Fall management — Post-fall root cause analysis and disclosures

MARIA WOOD: When performing any sort of disclosure, it's really somewhat of a challenge because while the organization needs to be able to provide an effective disclosure to the family, at the same time, there always needs to be caution when doing so. Because you don't know if that family member has already talked to an attorney.

SPEAKER: You're listening to The Senior Advisor, a WTW podcast series, where we'll discuss issues facing the senior living industry and explore risk management solutions, hot topics, and important trends critical to senior living operations.

RHONDA DEMENO: Welcome to The Senior Advisor podcast. My name is Rhonda DeMeno. I'm thrilled to be your host for this WTW podcast series. The series is intended to bring you firsthand information on trends and hot topics facing the senior living industry.

It’s somewhat of a challenge because while the organization needs to be able to provide an effective disclosure, there always needs to be caution while doing so, because you don’t know if that family member has already talked to an attorney.”

Maria Wood | Attorney, Hall Booth Smith

Today's podcast is the fifth episode of our fall management building safety foundations for communities and residents. This episode is titled, "Post Fall Root Cause Analysis and Disclosures". Root cause analysis and disclosures are essential. And we know that it is essential to provide clear and concise information about a fall event.

This episode will walk the listener through concepts of conducting a post event root cause analysis and disclosure. The episode will be presented by our own WTW client relationship manager, risk manager, Joan Porcaro, and Maria Wood, attorney at law at Hall Booth Smith. I'd like to welcome both Joan and Maria to our podcast.

JOAN PORCARO: Thank you, Rhonda. I'm looking forward to our discussion today.

MARIA WOOD: Thank you from me as well, Rhonda. I'm really excited to be here and to be able to participate in the conversation.

RHONDA DEMENO: We are so fortunate to have both of these speakers. They both have many years of experience in risk management and in the senior living industry. For more information on our speakers, you'll be able to review their bios on our podcast webpage.

So, let's get started. We all know that when our employees report to work, the day starts off as an ordinary day. But because we work in health care and especially in senior living, adverse events occur. And one of the most common adverse events are falls.

Studies tell us that assisted living communities and skilled nursing facilities report an average of 260 patient falls per year across an organization. So, let's begin with the scenario that a nursing assistant walks into a resident's room and the resident is found on the floor due to a fall. Joan, what are the first and early steps post event?

JOAN PORCARO: Thanks, Rhonda. Your question is a good one. Because sometimes, when we are considering a serious safety event, we want to make sure, first and foremost, that we secure that resident. We want to make sure that they have indeed received the initial first aid that they will expect after a fall.

We want to make sure staff is aware that the fall has happened. We want to also take a look at what the scene is, so that we don't end up having a situation where there was a spill on the floor, the staff goes in to rescue the resident, and they themselves end up falling on the floor. So, we really want to take control of the situation.

And again, we want to also just make some assumptions that it was a fall. But we'll let the investigation unfold. And that will give us more information.

RHONDA DEMENO: Thanks, Joan. That's a really good response. Maria, would you like to add anything in regard to, what type of instructions would you give staff members that are involved in the event?

MARIA WOOD: Absolutely. Thank you, Rhonda. One of the initial steps, as Joan pointed out, was that we need to let the investigation unfold. Therefore, when you are talking to your staff members involved in the event, such as that nursing assistant, who, unfortunately, walked in and found a resident on the floor, the first thing that, that nursing assistant needs to be very careful about is to only-- when she's documenting in the chat, if she's writing an incident report, the first thing she needs to do is to make sure she only documents what she saw and what she knows to have happened.

If she did not see that resident fall, she should not be documenting that there was a resident fall. She should be documenting that she walked into the room and found the resident on the floor. She should also be very careful.

And anyone else who was involved in caring for that resident immediately after that fall, they need to be very careful to only document what they did and the care that they gave. Because if this were to ever turn into litigation down the road, they're not going to remember that information at that point. And it will be questioned as to whether they even did it.

RHONDA DEMENO: So basically, you're saying, document the facts only, document an objective way, not in a subjective way. For example, saying, oh, I was surprised to find Mrs. Smith on the floor.

MARIA WOOD: Absolutely, Rhonda. The word, surprise, would be horrible, if it were in a record. That's a great example of what they should not be documenting because that can lead to all sorts of impressions that family members may form, or opposing attorneys, or anybody down the road. That's not factual. She or he-- they need to document what they saw and not make any assumptions, as I think you pointed out earlier.

RHONDA DEMENO: So, let's say the fall investigation is completed, Maria, what can an organization do to protect the investigation? What do you recommend?

MARIA WOOD: Well, the best way and almost the full proof way to make sure that your investigation will be protected is to have your general counsel or even, potentially, litigation counsel come in and talk to these staff members, rather than doing the investigation in-house. Even though, most states do have peer-review statutes that protect, peer-review investigations or anything done under the quality assurance protections, those are always subject to attack in litigation, even though they're supposed to be privileged. But if they are used correctly, those will work.

But the most certain way to be able to protect an investigation is to have somebody come in and actually do those interviews with you. So that, that information is work product and attorney client privilege.

RHONDA DEMENO: Very good information. Would you recommend that on all four events that result in an injury, that counsel was notified?

MARIA WOOD: I think that is a decision that can be made on more of a case-by-case basis. For sure, if the community or organization is required for their insurance, then you do need to contact your carrier who might retain counsel. But in terms of whether or not an organization might want to involve their general counsel, for example, in an investigation, I think that's more of a case-by-case basis, depending on the outcome, and the injuries, and what the facts are.

RHONDA DEMENO: I understand that. That's good advice. So, let's say part of the investigation should be a root cause analysis should be conducted. So, my next question would go to Joan. Joan, what are the essential strategies when conducting a root cause analysis?

JOAN PORCARO: I would say, first and foremost, just to reinforce what Maria said, extending first that privilege, whether it be notifying your attorney or utilizing the quality privileges that are extended to each state. Just be sure that any work that you're doing is protected. And being able to speak freely and work through those issues, so that you can improve the situation so falls don't happen again would be a good opportunity to take hold of.

And then the next part is really define the problem to be addressed. And what I mean by that is often the attendees that might come to a root cause analysis may even have some preconceived notions. They're pretty sure they already know what caused the event before even the meeting starts.

So, by defining the problem, the group that's meeting can first help. Make sure they're keeping the team on track. Ensure for no meeting bias. And then make certain that the RCA or root cause analysis of Joint Commission often says, is thorough and credible. And they'll be collecting information and doing so by starting off, really, with a solid timeline.

RHONDA DEMENO: So, Joan, let's switch the conversation to the disclosure process. Can you explain what the value of disclosure to the resident and their family?

JOAN PORCARO: Well, basically, ethical and professional guidelines coming from, let's say, the American Medical Association have long emphasized physicians have a responsibility. The care team has a responsibility. Leadership in the organization has a responsibility to disclose medical errors. And that disclosure, essentially by acknowledging the event, it creates trust with the resident and family. It supports a positive emotional response to this unexpected event.

And it's likely too, that if it's handled, the disclosure is handled in an organized fashion, the team is well prepared. And conducting the disclosure is handled fairly. And honestly, with compassion, of course, it may decrease the likelihood of a resident seeking legal advice, following whatever the mishap was.

RHONDA DEMENO: Maria, I know that we talked earlier about really discussing with the team members on, really, what to say about an event sticking to the facts. But what should the team members not say to the family?

MARIA WOOD: There are a lot of issues that the team members should not discuss with the family. I think the biggest issue that they should not discuss with the family is to blame another team member for what happened or make any comments. A family member is often complaining about the individual who was involved or, perhaps, involved in an adverse event.

The worst thing that a team member can do is tell a family member, oh, we're handling that person. We're going to do something about that, don't you worry. Because then that creates an impression from the family's perspective that somebody, one, did something wrong. And that, two, the community is going to do something about that person. And that can certainly be a problem down the road.

And just to add to what Joan said about the disclosure, when the family feels that the community and the organization is talking to them and disclosing what they believe may have happened, then the family will not be so quick to accuse the organization of being evasive with them. That's when we really get these issues with family members wanting to pursue lawsuits. I would say, in almost all the cases I'm handling right now, the family member has an opinion, a perspective that something that was said to them shortly following the incident that's at issue was evasive or that the organization was covering something up. And that's why they felt the need to move forward with the lawsuit.

RHONDA DEMENO: Very good information. Very good. Joan, could you talk a little bit about documentation in regard to the disclosure process?

JOAN PORCARO: Basically, we want to, first and foremost, make sure we're documenting in a way that's factually based. And we want to take a look at the medical record in its current state before we begin to review how we're going to approach the documentation. I think when we look at all the different steps in the disclosure process, we want to also think about who was participating in the disclosure. And making sure we document the names of the individuals in the record. So that we know, three years from now, who was actually in the room when that disclosure was taking place.

We want to make sure that we not only communicate but reinforce that this isn't a onetime conversation. We're going to be evolving through the investigation. We're going to come back to them and talk to the patient or the resident and the family members and essentially keep them updated. Nothing worse than going back to what Maria said is avoiding the resident, avoiding the family members, not returning calls.

So we want to be careful that our documentation truly reflects all of the activities that we put into play, how well we tried to communicate to the best of our abilities, what we know. And again, being able to ensure that you're conveying in your documentation that you expressed empathy, you were honest, you didn't speculate are some of the important first steps when we think about what we're going to go ahead and put in that record. Being able to make sure that we don't use words, like the error that happened or the mistake that happened.

Keeping things in a neutral tone. I think the old saying is just the facts and only the facts. And we'd want to approach our documentation in the same way.

RHONDA DEMENO: Maria, do you have anything to add to that documentation? As an attorney, a defense attorney, is there anything else that we should consider?

MARIA WOOD: I think Joan hit the nail on the head when she was discussing the need to document the facts and only the facts. The only thing I would add is that the documentation does not have to be detailed. It needs to be detailed enough to report the facts.

For example, I walked in the room, I observed the resident on the floor. And then describe exactly what their position was. If it's possible, indicate the last time that resident had been seen or checked. When you assess the resident, what were their vital signs? Were they talking? Were they alert and oriented?

But beyond that, there does not need to be information in the report about, for example, this staff member came in 10 minutes later and asked what happened. In terms of documenting an incident report, it really just needs to focus on, like Joan said, on the facts and only the facts. And it does not need to include information that the family member may later take and might potentially open a can of worms.

JOAN PORCARO: Remember, when you're actually conducting the disclosure not only to have the names of the people who were in attendance, the staff members, but you do have to use an interpreter. Were there any assistive devices in order to communicate with the resident? And then summarize, really, what was communicated to the resident, and their response to it, and any of the questions that they posed. The resident Betty asked the following questions and we were able to answer them to her satisfaction.

RHONDA DEMENO: Very good point. Joan, what do you think some of the barriers-- I know, sometimes, staff are very uncomfortable in disclosing, or they'll try to cover it up because they really feel it was something that they did not provide appropriate care, or they were delayed in getting to the resident when the resident had called out several times before they finally got to the room. So can you explain some of the barriers related to disclosure?

JOAN PORCARO: Every time we think about the care team working with the resident, no one ever intends to start their day off with someone experiencing an injury. So I think that there is some-- some of the team might be scared. They might have some concern that, yes, they maybe missed a check on that resident. And now, they're feeling a bit embarrassed.

Fear of blame, concern that they might get looped into a malpractice situation, job security, and even some concern for criminal charges. That someone may view what happened in a totally different way. So I think those are just some of the basic barriers that could come up for people. It's just really uncomfortable, of course.

RHONDA DEMENO: Maria, do you have anything to add to that?

MARIA WOOD: I definitely agree with everything Joan said. Those are all very, very important points. And staff members need to be trained on and ready for these incidents, which always are going to come as a surprise. And especially, if it's a resident that they spent a lot of time with, they are very upset. They are, like Joan said, they're very always concerned that, did I make a mistake? Did I do something wrong?

For that reason, when performing any sort of disclosure, it's really somewhat of a challenge. Because while the organization needs to be able to provide an effective disclosure to the family, at the same time, there always needs to be caution when doing so. Because you don't know if that family member has already talked to an attorney who is giving them advice. And they're coming back. And we mentioned that disclosure is ongoing.

And if this family member keeps coming back and following up and wants more information, that could very well be because there is an attorney in the background, who is essentially telling them or advising them what questions they should be asking. It always needs to be just a very, very careful process. And staff members need know not to open up and talk about their feelings with families or how bad they feel. They need to stick to the facts, like Joan was saying.

RHONDA DEMENO: Good advice. Now, let's pivot a bit to the incident report. Joan, who should prepare the incident report?

JOAN PORCARO: Well, I think that's a really great question. And I think, sometimes, folks might be a little bit intimidated about filing the incident report. But what I found is that the culture of the organization reassuring the staff members that, essentially, this is important information that we need, first and foremost.

Who should fill it out? The person who has the most information. And that can be a discussion that the manager might have with the team members to say, who indeed has the most information, maybe more of a witness to the situation? Or the person who's assigned to care for that individual. So it really is fluid.

But again, I think the important part is to keep to the facts. There are different requirements in different states, as far as whether these are discoverable or not. So keeping the content factual is important as well.

RHONDA DEMENO: Maria, how should the required incident reports be completed? Those reports that end up going to the court.

MARIA WOOD: Typically, those reports-- and those are reports that are, for example, required by the Department of Health and Human Services in the event of, for example, a resident death or some sort of event that required sending the resident to the hospital. And those reports, which usually do have to be turned over, the good news is there's not a lot of information that really has to go into those reports. If you found a resident on the floor next to their bed, the assumption would probably be, oh, they must have fallen.

I actually had a case last year, where we don't believe the resident fell out of their bed. So when the staff member is completing that incident report, they don't mention fall. They don't-- if there's a box to check about what described the event, it is not a fall. It's some sort of unknown origin or other, we don't know because we walked in the room and that resident was on the floor.

And usually, a very brief description of what you found, where the resident was, the assessment performed, their vital signs. Essentially, the medical information that you would obtain from that resident right after that incident. And then signing off and explaining that the two things you have to make sure you also include are that you called the responsible party, usually, the family member. And that you call 911.

And what are the times that these phone calls occurred? That can be very important too. So it is strictly the facts in these reports that are required. And those will usually not be harmful to your organization, if they ever become relevant down the road.

RHONDA DEMENO: So I think it's really important that leadership really work side-by-side with those completing the incident reports. And another point, I think, is, oftentimes, we have agency staff. Or these events, unfortunately, occur off hours on the weekends. So we really need to make sure, in my opinion, and Joan and Maria correct me, if you think I'm wrong, that agency staff, we really need to really teach them and train them when they're coming into our communities to work about our incident reporting process.

And then have leadership really review the reports and work side-by-side with these team members to ensure that the incident reports are completed accurately and factually. So I'm going to go to the next question. And it would go to Maria. Maria, this question is about, if you receive a medical record request from the family, should the community include the incident report?

MARIA WOOD: Absolutely not. I'm not aware of any jurisdiction, which considers incident reports medical records. We've had situations in the past where staff members did not understand that distinction and would include incident reports with a resident's medical chart. So incident reports and any other documentation such as witness statements, those need to be kept separately from the chart. And those are not considered medical records.

I know that in North Carolina, for example, if an adult care community receives a records request, in North Carolina, the list of required records that need to be maintained in a resident's chart is really fairly-- not brief, but it's not as cumbersome as, for example, a skilled nursing facility. So you need to think about, what type of community is this? And if you get a records request, incident reports are not produced.

Sometimes, the family will slip in a request for policies and procedures. Those are not medical records. For sure, those should not be included in the chart. But on the flip side, another issue we see a lot is that MARs, Medication Administration Records, those are very often kept separate from the chart because they are kept near the medication cart, as the providers are going up and down the halls and giving the medications every day. Those need to be sure to be produced.

One thing that I've advised communities I work with to do is we literally go to the statute and pull the list. This is what your records should have. If it's not on this list and it's not a medical record, you do not need to produce this regardless of what the letter from the big bad lawyer asks for. So that's essentially what needs to be produced and what does not need to be produced.

RHONDA DEMENO: Thank you for that. We're beginning to get short on time. But I really wanted to address the difference between disclosure and an apology. Joan, is an apology-- is this an admission of liability?

JOAN PORCARO: I would say that, first and foremost, not all situations, where there's an injury that has happened are created equal. And so it's important to know which is appropriate for the situation. Apologizing-- to your question, is apologizing admitting liability? While apologizing to the patient should not mean that you're admitting legal liability for what happened.

Essentially, when we look at disclosure, again, going back to physicians, and providers, and the administrators of these organizations, they know that it's ethically correct to provide good information. But the difference between saying, I'm sorry, our nurse caused the fall is very different from saying, I'm very sorry that you and your family are going through this very difficult experience. And we're here standing ready to get you through this challenging time.

So again, it is not so much an admission of liability per se. But again, we have to take into account certain laws within the country itself and different states.

RHONDA DEMENO: Yeah. And I know many states do have apology laws. Maria, can you give us some of the best way to handle an apology or to handle the conversation with a family member?

MARIA WOOD: I think the best way to handle those conversations is not to ever apologize, to never admit that you caused something. I always would make the argument, if we get to litigation, that somebody such as an executive director of a community, actually, causation is a medical issue. And nobody would know at that time, really, what the cause of an injury or death was.

But in any event, you obviously don't want to tell a family member, give a family member, a statement such as that. And then they will, for sure, use it against you later on, if they decide to pursue any sort of action. I think the best way is really exactly how Joan recommended just a few minutes ago when she made the distinction between expressing condolences for and empathy to the family, regarding something bad that has happened, as opposed to saying, that nurse caused it or that nurse wasn't watching your mom. We are so sorry.

Even though, there are apology laws in a lot of states which are supposed to protect apologies, I still don't think that is ever the best course of action. And in any event, whoever is having this conversation with the family needs to make sure to document it contemporaneously with that conversation.

RHONDA DEMENO: Two final questions. The one question goes to Maria. Can you opine on preservation of documents? What would you recommend?

MARIA WOOD: Essentially, I would recommend that all those documents be preserved. Err on the side of caution. We get lots and lots of requests for preservation. It's gotten to the point that, usually, at the same time we receive a medical records request, we are also receiving a request for preservation.

And that includes not just the physical chart, those things are electronic. But if not, that would include the paper chart. But that also includes-- usually, these preservation requests are going to also extend to what policies and procedures were in effect at the time of the event? They will want-- if there's video, if there was video in the community, they are going to ask you to preserve that information.

So if you have an adverse event, if somebody falls, if somebody elopes, if something like that happens, and there is video, a lot of systems automatically record over video every 20 days or every 30 days or so. So please make sure to take that video and remove that from that portion that would be written over because you very well may need it one day. I guess to sum it up, my advice is that you need to preserve anything that could provide information about what happened.

RHONDA DEMENO: Then my final question to both Joan and Maria, what are some important takeaways about disclosure? Joan, do you want to start off?

JOAN PORCARO: Yeah, thank you, Rhonda. I think for me, I always would like to share that we should look at disclosure as a process that the team is working on together. We want to make sure that who's ever leading the disclosure process, perhaps, it's a manager or the administrator, that we are making sure that we're united in how we're messaging to the resident and the family member. That we're making sure that we don't have any one-offs, where a staff member may not have been included and might incorrectly dispense some information that is counter to what the team has been working on.

So a lot of times, we want to ensure that the staff remain, keeping this information confidential, like they would any other interaction and care they might be providing. But we want to make sure that the messaging is consistent.

RHONDA DEMENO: Maria, anything you want to add?

MARIA WOOD: Thank you, Rhonda. I really don't have much to add. I think Joan said it beautifully. The only thing I would add is that any organization needs to make sure to identify whether there are any staff members or employees, who might have been involved in that event, who are going to be negative towards the organization. And identify those individuals early on. And that might affect how they participate in any sort of investigation.

RHONDA DEMENO: All good takeaways. Thank you very much. I think this sums up our conversation. These were two pretty hot topics, topics that we could probably spend hours discussing. Joan, thank you very much for your time today and participating in this podcast.

JOAN PORCARO: Oh, thank you, Rhonda and Maria too. I want to extend my thanks for a great conversation on an important topic.

RHONDA DEMENO: And Maria, thank you very much for your time today and your valuable information. We really appreciate your participation.

MARIA WOOD: Thank you, Rhonda. And thank you, Joan as well. I have really enjoyed working with both of you and being a part of this podcast.

RHONDA DEMENO: And a special thank you to all of our listeners today. We hope you found the information informative. And again, please check out the five part series for fall management. Thank you very much. And have a great day.

SPEAKER: Thank you for joining us for this WTW podcast, featuring the latest perspectives on the intersection of people, capital, and risk. For more information, visit the Insights section of WTW hopes you found the general information provided in this podcast informative and helpful.

The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, WTW offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc., in the United States, and Willis Canada Inc., in Canada.

Podcast host

Rhonda DeMeno
Director of Clinical Risk Services, Senior Living, WTW

Rhonda is the host of The Senior Advisor and has over 30 years of extensive senior living experience as a healthcare risk manager, regulatory compliance expert and operations leader.

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Podcast guests

Joan Porcaro
Director, Client Relationship Management, WTW

Joan has over 30 years of extensive experience as a health system risk management professional. Prior to her work in risk management, she served as an operational leader in acute care, emergency, home health, hospice, and physician practice settings. Joan’s current responsibilities include providing clinical risk management consulting as well as support and resources to healthcare clients to assist them in better managing and reducing their risks.

Maria Wood
Attorney, Hall Booth Smith P.C.

Maria P. Wood is the managing partner in Hall Booth Smith P.C.’s Raleigh office where she specializes in medical malpractice and long-term care defense, as well as other areas of professional liability defense. In her more than twenty-year legal career, she has gained significant litigation and trial experience, devoting her career to the representation of health care providers. These providers include long-term care facilities (skilled nursing and assisted living facilities) and other healthcare providers. Maria appreciates the distinction between skilled nursing, assisted living, and other types of facilities, and this experience enables her to navigate her clients through the complex litigation process.

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