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Physicians and Nursing Facilities: Never-Ending Liability?, Kentuckydoc October/November 2011

Attorneys

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Kentuckydoc, October/November 2011, Volume 3, Issue 4.

Authored by: Lisa English Hinkle

As commercials soliciting nursing home patients with claims for poor care play in Kentucky homes and Kentucky juries award large monetary verdicts against nursing homes, we can expect to see a growing number of lawsuits to be filed against nursing homes. These lawsuits can be easy for the plaintiffs bar to prove when deficient care is found by state regulators and documented in statements of deficiencies issued to nursing homes by state regulators. Plans of corrections filed by nursing homes to bring their facilities into regulatory compliance may pit the treating physician of a nursing home resident against the nursing home and its staff. As lawsuits increase against nursing homes, physicians can be sure that their involvement as witnesses and even defendants will increase too. Physicians need to be vigilant about their treatment of nursing home patients and aware of the importance of their role as well as the ever-changing regulatory landscape. Pain medication, never events and increased transparency may all factor into increasing liability for physicians who care for nursing facility patients.

Pain and Suffering: Pain Medication

Because chronic pain accompanies many of the degenerative diseases associated with aging, persistent pain is a common condition for nursing home patients. Moreover, pain is a difficult condition to treat for patients with cognitive impairments. In fact, a new area for state regulators' inspection includes a nursing home's responsiveness to a resident's pain. Recent DEA enforcement of a rule that prevents a nurse in a nursing home from serving as a physician's agent for ordering Schedule II controlled substances without a written authorization has made providing pain medication for nursing home residents a more difficult process that often creates significant delay for a patient who needs pain medication. Previously, nursing home and pharmacy practices industry wide allowed a nurse to call in a prescription for a treating physician without a written authorization — practices that are now considered illegal and subject to large fines. A recent bill proposes to allow pain medication to be dispensed in an emergency situation by nursing home professionals that will address the situation, but has yet to be passed by Congress. Currently, the AMA suggests that physicians keep prescription pads with them and consider purchasing a home fax machine so that prescriptions can be sent to pharmacies as soon as possible for nursing facility residents.

While complication of the process for ordering pain medication for nursing home residents creates new problems, physicians must still rely upon calls from the nursing home staff to describe a patient's situation and then make medical judgments about what medication is appropriate and the correct dosage. Given that pain and suffering can be highly inflammatory in the context of a lawsuit about a nursing home resident, physicians need to pay attention to requests from nursing home staff for changes in orders and medications. Nursing facility staff often has trouble communicating with busy physicians. A physician may often find that the nursing facility has simply faxed information about a change in a patient's condition rather than having a direct conversation with the physician. Timely receipt by a physician of information that comes via the fax machine often depends upon who catches the documents that are faxed. When physicians are contacted by nursing facility staff via fax, physicians, of course, may only know what actually comes to their attention, but may be charged with knowledge of what ends up on the office floor. Physicians should appoint a particular staff person to be responsible for nursing facility communications and educate all staff members about the need for responsiveness.

Never Events

The secretary of HHS has directed state Medicaid programs to withhold payment for provider preventable conditions or "Never Events" for nursing facility care by July 2012. While hospitals have learned to live with non-payment by Medicare since 2008 and Kentucky Medicaid since 2010 for never events, states will now be required to deny payment for certain events that are perceived to be preventable by nursing homes. Each state Medicaid program has the ability to designate which events are covered, but the National Quality Forum has designated never events to include the development of pressure sores, falls, accidents associated with restraints, medication errors, elopement, suicide and other conditions as well. For physicians who treat nursing facility residents, the involvement in the care of a patient who experiences a never event can mean increased liability both to the patient and to the nursing facility in certain circumstances. If Medicare or Medicaid finds that a patient has suffered a never event, the provider involved has an uphill battle to demonstrate lack of liability. Physicians can become implicated in a never event quite easily under many different scenarios. For example, ordering restraints for a patient who then suffers a serious injury as a result could involve the physician in a lawsuit with the burden of proving that the restraints were appropriate and medically necessary in the first place, but misapplied by the nursing facility.

Transparency for Nursing Facilities

The Health Care Reform Act includes broad requirements for nursing facilities for disclosure of information about their ownership and persons exerting control and influence over the facility, which will become available to the public through the CMS Nursing Home Compare website. Disclosure of information is perceived to be the vehicle that will bring about improvement in the quality of care provided by nursing facilities. Transparency of ownership requirements, however, is vastly expanded beyond the traditional notion of who an owner is to include who any one provides management, administrative or clinical services on a consulting basis. The provisions of the statute and proposed regulations are so broad that for certain parties, its organizational structure must be disclosed even though the party is not an owner. Physicians who serve as medical directors of nursing facilities will have to be disclosed by virtue of their responsibility for clinical care and policy role for the facility. This, in turn, means that the identity of the medical director will be reported on the Nursing Home Compare website or available via a link to the public. Final regulations addressing the scope of the requirements are to be issued by March 2012. Public disclosure of owners and those who provide services to nursing facilities increases the likelihood of being named in a lawsuit against the facility. If a medical director has the contractual responsibility for oversight of clinical care or approving facility policies and procedures, then the medical director may be named as a party to a lawsuit in addition to the facility.

Conclusion

With the increasing complexity of regulation of nursing facilities, new areas of liability may exist for physicians who care for patients in nursing facilities. Physicians should be aware of the ever-changing regulation of nursing facilities and understand their role. It is suggested that physicians be aware of the unique complexities of prescribing pain medication for nursing home patients, of what portends for never events, and of the increasing public disclosure of information about nursing facilities and those providing clinical services under contract. Stay tuned for more is sure to come.

Lisa English Hinkle is a partner of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Hinkle concentrates her practice area in health care law and is located in the firm's Lexington office. She can be reached at lhinkle@mmlk.com or at 859-231-8780. This article is intended as the author's opinion and does not constitute legal advice.

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