Our 2021 Client Wins and Trends: Med Law’s Year in Review

For a second year, the COVID-19 pandemic has continued to dominate headlines in the healthcare field. Whether responding to the Delta variant surge, staffing and bed shortages, financial concerns and vaccine mandates, healthcare organizations have weathered an extraordinarily challenging year in 2021. 

At the same time, Med Law Advisory Partners has continued to work alongside those in the field to boost their capacity to respond to medical malpractice claims by analyzing medical records, making standard-of-care evaluations, helping counsel develop case strategy, and helping healthcare organizations use downstream insights to inform upstream care. 

Here’s a recap of some of our work this year, as well as trends we’ve reported in 2021. 

How to Save Millions on a CMS Immediate Jeopardy Enforcement

In March, we shared a case study of how Med Law’s deep dive into the medical records potentially saved a long-term care facility millions in fines from The Centers for Medicare and Medicaid Services, or CMS. 

Our client, a mid-sized regional skilled nursing facility, faced an Immediate Jeopardy assessment by CMS and, potentially, millions of dollars in penalties, related to wound care provided to one of their long-term residents. Defense counsel for the facility reached out to Med Law when CMS’ survey team was onsite, requesting an emergency medical record review to help defend the assessment and mitigate damages. 

Med Law was given remote access to the facility’s electronic medical record within two hours and, over the next few days, our nurse consultants diligently reviewed clinical documentation surrounding the resident’s wounds, working with nursing administration to fill in noteworthy documentation gaps. 

As a result of our collaborative efforts, the teams identified significant documentation that supported proper care and treatment had occurred for most of the original period of alleged non-compliance. 

Unfortunately, issues remained regarding a lack of documentation to substantiate provider notification of symptoms consistent with wound infection for six days. The resident’s physician became aware of the wound changes during a follow-up evaluation. These findings were submitted to the CMS survey team for consideration in the Immediate Jeopardy assessment. Given the duration of the initial period of non-compliance, however, the review findings likely saved the facility hundreds, if not millions of dollars in penalties. 

Consulting vs. testifying experts: What’s the difference, and do you really need both?

In June, we discussed the difference between consulting and testifying experts, and how consulting experts can help manage litigation costs. That’s increasingly important in an environment in which companies are attempting to rein in high costs of legal fees and expenses. 

According to Statista Research and Analysis, in 2020, U.S. companies spent $22.8 billion on litigation, with a sizable portion of those dollars coming from medical cases.

Meanwhile, according to Risk & Insurance, the pandemic has arguably accelerated the hardening of the medical malpractice insurance market, resulting in increases of prices, exclusions and limitations and a reduction in capacity as some insurance carriers left the market. 

As a result of these and other factors, attorneys, claims adjusters, insurers, senior living operators, and general counsel for hospitals and health systems are feeling the pressure to tighten their belts and find new ways to litigate medical cases or even avoid trial altogether, reducing their overall legal expense. 

With fewer cases going to trial, the use of legal nurses as “consulting” experts in a case can be a simple yet effective way to manage litigation costs. As a clinical member of the legal team, tenured nurse consultants bring invaluable medical expertise and strategy to help efficiently and effectively value a claim and move it towards a positive resolution, many times without the assistance of a higher cost testifying expert. 

Defense Win: Strategy key in lowering litigation costs and damages

In July, we shared a case study of how Med Law helped a skilled nursing facility secure a favorable outcome in arbitration in a resident’s negligence suit, with savings of close to $200,000 in damages appreciated by the defense. 

The case stemmed from an incident in which a certified nursing assistant attempted to transfer a resident from a bed to a chair using a mechanical lift. During the transfer, the lift tipped over and the resident fell to the ground. She was taken to the hospital, where she underwent surgery. The resident alleged that she experienced prolonged, significant pain after the fall and never regained her prior mobility. 

The facility’s outside counsel engaged Med Law to evaluate the resident’s alleged injuries. After first providing a high-level review of whether the facility met the standard of care, Med Law’s consulting nurse experts continued to work alongside counsel on the case, regularly assessing medical records throughout the discovery phase of litigation and helping the defense build its strategy. 

Med Law’s nurse consultants determined the facility did nearly all it could to prevent the incident but failed to meet the standard of care because only one CNA was present for the transfer, and two were required by the patient’s fall risk care plan. 

Ahead of mediation, Med Law’s team re-analyzed primary and third-party medical records to establish the resident’s functional capacity and mobility levels before and after the fall, to differentiate the resident’s post-operative pain from her baseline chronic pain prior to the incident, and to pinpoint when her acute pain resolved. The team prepared a table showing her pain and function levels over time. 

The team determined that the resident suffered significant pain post-fall, but for a short period of time. They concluded her acute pain was well-managed in the hospital and tapered off within weeks of her surgery, and that she experienced little if any diminished functional capacity following the surgery.

The case highlights the value of medical-legal expertise beyond just the initial investigation of a case. 

Opioids, healthcare fraud to remain top priorities under Biden DOJ

In October, we shared that healthcare providers can expect a continued high level of scrutiny when it comes to federal prosecutions of healthcare fraud. 

Michael Granston, deputy assistant attorney general for the Department of Justice’s commercial litigation branch told attorneys attending the American Health Law Association’s annual meeting that 2020 was a record year for healthcare fraud prosecutions. 

Additionally, he advised that attendees should expect more of the same under President Joe Biden’s administration. The DOJ plans to focus its prosecution efforts on contributions to the opioid epidemic, electronic health record misuse, manipulation of Medicare’s managed care program, senior citizen abuse, and COVID-19 relief fund fraud. 

In addition to helping healthcare providers prevent and respond to healthcare fraud litigation, we also proactively work with our clients to ensure they implement safe controlled substance prescribing practices and help minimize fallout in the event of a prescription compliance investigation. 

Conclusion

Med Law recognizes that 2021 has been another difficult year for those in and around the healthcare field. We applaud your continued hard work in these exceedingly challenging times. We wish you a happy, healthy holiday season and new year. 

We are ready to assist you in your medical malpractice litigation, as well as provide consulting on ways to improve patient care and reduce liability. Contact us for more information on how we can partner with your team.