DALLAS — For years, the approach to improving quality of care in nursing facilities has been through regulation, not litigation. In the 1990s, several landmark cases in California, Texas, Arkansas, and Florida signaled a change. “[Nursing facility cases have] now become one of the fastest growing areas of health care litigation, with the majority of cases initiated by children of the resident,” said Dr. Randall Huss, C.M.D., in a presentation on nursing facility litigation and liability. The most common allegations are the ones we expect on pressure ulcers, dehydration, emotional distress, and falls, said copresenter Dr. David A. Smith, C.M.D., FAAFP. The presenters, who spoke at the annual symposium of the American Medical Directors Association, said they were aware of only one major case (Hayward v. Valley Vista Care Corp.) where a physician was named as defendant in his role as medical director. That medical director also served as the resident's attending physician. In April 2005, the Idaho Supreme Court's written opinion contained language supportive of medical directors. The opinion said that the medical director is not responsible for each and every act of the attending physician. “You don't have to look at every order and make sure those orders are okay,” said Dr. Smith, professor of family medicine at Texas A & M University Medical College at College Station. But, he cautioned, if you were called upon by the facility, and this was not your patient, and you did not act appropriately, you legitimately could be included in a lawsuit. With the enactment by the Centers for Medicaid and Medicare Services of the Revised Medical Director F-Tag 501, many have questioned how it affects their liability. The regulation does not add new roles, but it clarifies the medical director's existing roles and responsibilities to surveyors. The F-Tag 501 must be cited in combination with some other type of quality-of-care citation, such as pressure ulcers. If a facility is cited for the F-Tag 501, and surveyors find that the policies were not in place to prevent a quality-of-care concern, that situation could create a road map of accountability and potential civil liability for the medical director in cases of negligence, abuse, or neglect by the facility. The presenters also reported an increase in cases where federal and state regulations are serving as the basis for a cause of action. While regulations may form the basis of state surveys, they are not the standard of care, said Dr. Huss, president of St. John's Clinic in Rolla, Mo. Nevertheless, until we can stop these types of cases from occurring, “any action taken to address deficiencies cited by surveyors should be well documented by the defendant.” So, if you are involved in nursing facility litigation, you should avoid these pitfalls: altering the medical record, a lack of documentation of care, end-of-shift rote charting, a failure to follow established policies and protocols, care plans not updated to reflect current status of and appropriate goals for resident, failure to follow the care plan, failure to communicate care plan elements to weekend and temporary staff, failure to recognize or respond appropriately to change in resident status, failure to notify a physician of significant problems or change in resident status, and a care plan that promises more than can be reasonably delivered. The presenters also offered steps to protect the facility and providers from liability: ▸ Complete reports and follow-up with investigation of potentially litigious events. ▸ Allegations of or claims of witnessing abuse require immediate reporting to the director of nursing/administrator. ▸ Be sure to have adequate staffing, supervision, regular in-service training, and background checks, where appropriate. ▸ You must have accurate, complete, and timely documentation. Any event important enough to fax or call a physician about should trigger a note in the record reflecting the concern, the response received, and the actions undertaken. ▸ Properly complete the minimal data set and establish the appropriate care plan. ▸ Document all conversations with the family and responsible party. ▸ Require initials and dates for all orders. If errors are made, correct with a single strike through with initials. ▸ Regularly update care plans to reflect the resident's current status and goals of care, especially regarding end-of-life care. “Good documentation, communication, and care planning process are the key in risk reduction, Dr. Huss said.