Recent significant strains on our healthcare system, especially bedside care providers, have highlighted the reality that institutional staffing ratios currently employed are based on outdated care delivery models and unrealistic budgetary considerations. As a result, organizational leadership is continually tasked with staffing units for maximum patient outcomes while exhausting the least resources possible. Historically, formulas have determined patient care staffing needs by calculating hours per patient per day. While individual state legislation has improved transparency in staffing ratios, the impact on actual patient care has been less than seismic. Continued focus on numbers rather than acuity and nurse skill level have plagued the process, and while staff has certainly suffered, patients have borne the brunt of this system failure.

From a risk management perspective, the trajectory from insufficient staffing to poor care and less-than-optimal outcomes should not be a surprise. Yet, somehow, to many facility executives, it is. Current evidence-based research points to lower nurse-to-patient staffing ratios as a key quality indicator for disease-specific outcomes and patient satisfaction. According to the American Nurses Association, we continue to face a staffing crisis challenged by an aging population, cost-saving strategies, and workplace stressors. Sicker patients with complex, multifaceted, interdisciplinary needs are the rule rather than the exception. Staffing models that consider the acuity of patients and the number of patients, while seemingly obvious, are rarely utilized.

Day after day, nurse staffing ratios continue to be purely numbers-driven. Even as the Covid pandemic magnified how patient acuity influences staffing deficiencies, numbers continued to drive staffing, fueling staff burnout and compassion fatigue, dissatisfied patients and families, and unsafe delivery of care. Nurse staffing norms are pennywise but pound foolish, adding to increased areas of exposure to liability requiring countless dollars spent defending resultant negligence claims. A thorough evaluation of how staffing is determined, considering more than just dollars and cents, but the complexity of patient acuity, nurse skill level, presence of ancillary staff, and treatments ordered, while more expensive, is more cost-effective in the long run.

The future of patient care delivery must include staffing ratios that allow for the realistic achievement of safe, evidence-based, quality care. Cost-prohibitive staffing ratios simply cannot support long-term risk management goals. Finding a way to fund more liberal staffing measures is a key component to achieving a culture of safety that respects the staff as human beings rather than numbers. Shifting away from numbers-based staffing is how leaders can chip away at the perils of poor patient outcomes while streamlining costs. Don’t get caught in the loop of endless tail chasing, trying to meet unworkable staffing expectations. Instead of ignoring patient acuity, incorporate it into your staffing model. The result will likely be long-term cost savings through decreased exposure to the liability pitfalls inherent in unreasonable staffing constraints.

At Med Law Advisory Partners, we not only evaluate medical malpractice claims but also assist our clients by looking for patterns of gaps in care that may indicate insufficient staffing, exposing the facility to litigation. Let us help you not only when litigation arises but let us help you identify potential issues upstream to avoid litigation downstream.

Since the introduction of the prospective payment system (PPS), hospitals have had a financial incentive to discharge patients quickly because Medicare, for the most part, pays a fixed rate for hospitalizations without regard to the length of stay. Many discharge planners view their roles as cost control. When the discharge is not to a skilled nursing home (SNF), follow-up for unresolved medical problems is critical. Post-hospital acuity levels have increased, resulting in more complex arrangements and increased teaching needs for patients and family caregivers.

To facilitate an appropriate discharge from the hospital, The Center for Medicare and Medicaid Services has the following regulation in effect:

• 42 CFR § 482.43 – Condition of participation: Discharge planning. The hospital must have an effective discharge planning process that focuses on the patient’s goals and treatment preferences and includes the patient and his or her caregivers/support person(s) as active partners in the discharge planning for post-discharge care. The discharge planning process and the discharge plan must be consistent with the patient’s goals for care and his or her treatment preferences, ensure an effective transition of the patient from hospital to post-discharge care, and reduce the factors leading to preventable hospital readmissions.

A study investigating the association of patient outcomes and Medicare costs of discharge home with home health care vs. discharge to a skilled nursing facility was conducted using more than 17 million hospitalizations from January 1, 2010, through December 31, 2016. 38.8% were discharged home with home health, and 61.2% were discharged to a skilled nursing facility (SNF). The patients discharged home experienced a 5.6 % higher readmission rate at 30 days than those discharged to the SNF. However, there were no significant differences in 30-day mortality rates or improved functional status. Medicare payments for those discharged home for post-acute care were significantly lower than those discharged to an SNF.

Skilled nursing facilities consistently received a higher share of hospital discharges compared to home healthcare agencies towards the last quarter of 2021 and the beginning of the first quarter of 2022, a shift from the home health trend in the early days of the pandemic. However, signs suggest home health referrals are much higher overall than before the pandemic. Even if demand for home health services is increasing, the demand for agencies’ bottom lines is based on staffing capacity. In January 2022, the home care industry’s referral rejection rate had reached 58%, according to Tom Martin, director of post-acute care analytics at WellSky. “This is telling us that [providers] can’t take this high volume of patients looking for home health services, and they’re starting to turn down more and more patients from their referral partners.

While increasing disease burden and rising healthcare costs in the United States have already contributed to a boost in care at home services, the COVID-19 pandemic has created a catalyst to reimagine their future. It is estimated that up to $265 billion worth of care services (representing up to 25 percent of the total cost of care) for Medicare FFS (fee for service) and MA (Medicare Advantage) beneficiaries could shift from traditional facilities to the home by 2025 without a reduction in quality or access. Factors that have created the opportunity for more care at home, including the growth in virtual care, remote monitoring, telehealth, social support, and home modifications, may enable more patients to receive some level of care at home.

Factors that could affect the adoptions of the growth of home care services are dependent on the following:

• Evaluating the services that can be delivered at home
• Economic viability for the healthcare facilities and physician groups
• Physician awareness, perceptions, and capabilities
• How patients feel about homecare

The COVID-19 pandemic has created a catalyst to fundamentally reimagine care at home to help improve the quality of care and patient experience while also creating potential value for payers, healthcare facilities and physician groups, home care providers, technology companies, and investors.

Patient care in their homes provides comfort for the patient and a reduced cost for Medicare; however, it needs to be appropriate and not be at the expense of preventable adverse health events. MLAP understands the risk intricacies in post-hospital discharge needs and the appropriateness of the discharge. Let us share our expertise with you to gain further insight into the standard of care in this process.

Assisted Living Facilities (ALFs) began to pop up in the early 1980s. Since then, they have become a prominent provider of care for the elderly population. As this level of care has risen in popularity, so too have liability claims in this setting.

Levels of Care

Unlike nursing homes or skilled nursing and rehabilitation facilities, which provide medical care, residents appropriate for admission to ALFs do not require high-level medical monitoring or consistent medical care. ALFs provide care for seniors who require personal care assistance. This includes assistance with activities of daily living (ADLs) such as bathing, dressing, and eating. Seniors residing in assisted living facilities are also often provided help with meals, housekeeping, laundry, and medication assistance. One of the appealing aspects of ALFs is that residents can access as much or as little assistance as they need, allowing them to retain much of their independence and autonomy. Emphasis is frequently placed on providing ALF residents with activities to provide a more home-like environment and foster socialization. Most residents can enjoy the independence of individual apartments, often equipped with kitchens and handicap-accessible bathrooms. Many facilities also provide memory care services that are geared toward residents with Alzheimer’s disease or dementia.

Liability Claims in Assisted Living

The average cost of liability claims across all aging services settings has increased since 2018, with assisted living claim costs exceeding those of skilled nursing. Fall-related allegations were the most common in the assisted living setting. Fall-related injuries included fractures, head injuries, lacerations, muscle/ligament injuries, and death. Aside from falls, other frequent allegations in the assisted living setting were resident abuse, understaffing, failure to monitor or supervise, pressure injuries, delays in seeking treatment or failure to transfer, medication errors, elopements, and wrongful death. While pressure injury allegations are not prevalent in the assisted living setting, the severity of pressure injury claims has increased significantly. Elopement-related claims accounted for the smallest number of claims but were the most expensive. In an effort to curb litigation risks and enhance the quality of care and life of residents, risk management recommendations often include expectations management, clear and transparent communication with residents and families, and ensuring placement suitability.

Unlike nursing homes or skilled nursing and rehabilitation facilities, which are regulated by The Centers for Medicare and Medicaid Services (CMS), most ALFs are licensed and regulated by individual state health agencies. The team of legal nurse consultants at Med Law Advisory Partners is well-versed in the regulations specific to assisted living facilities. This knowledge is crucial when addressing allegations in these liability claims. Let us share our expertise with you to gain further insight into the standard of care in the assisted living setting. Our nurse consultants can make the difference in obtaining a favorable outcome in the defensibility of these cases.

Recently, while coordinating the admission of a clinically appropriate patient to a long-term acute care hospital following treatment in an intensive care unit, a physician was reluctant to discharge the patient to long-term acute care. The reluctance came from believing that the patient would never achieve ventilator liberation. Unfortunately, this misconception is common. However, ventilator weaning is precisely what would occur in a long-term acute care hospital (LTACH) setting. In fact, the LTACH model of care specifically caters to the post-intensive care needs of critically ill, mechanically ventilated patients with complex needs and multiple serious diagnoses, necessitating collaborative, multi-disciplinary treatment, including hemodialysis, LVAD, and intense, aggressive specialized care and therapy, which cannot be provided in a short-term acute hospital setting.

Extended Intermediary Care

All long-term care is not the same. Although an LTACH is a form of long-term care, it is a medically complex transition from the acute care hospital intensive care or step-down unit to a longer-term, goal-focused, and outcome-directed plan of care for critically ill patients in need of extended recovery. LTACH care aims to provide continued treatment that cannot be offered in a skilled nursing facility or nursing home. Unlike those settings, an LTACH provides 24-hour physician support in addition to the auxiliary laboratory, radiology, telemetry, high acuity, and surgical care provided in a traditional acute care hospital, but on an extended basis. LTACH is the intermediary level of care provided before discharge home for further rehabilitation or a traditional long-term care setting.

The Importance of Interdisciplinary Care

Since the LTACH patient is often medically fragile and complicated, there are increased areas of liability involved in their care, as well. The highly collaborative nature of LTACH treatment means the interdisciplinary care team must work closely to ensure that goals of care are met timely, appropriately, and within the standard of care. While the goals consist of the traditional long-term care objectives of safety, nutrition, and skin integrity, the added complexities of critical illness correlate with an increased risk of liability when those goals remain unmet or are further complicated by ongoing issues. Thus, the collaboration of the interdisciplinary care team remains the core of LTACH care in meeting patient care needs through achieving maximum recovery potential, goal setting, and quality outcome measurement. In the immediate intensive care unit setting, outcomes are measured in shorter terms – minutes, hours, and days. The intensive care unit is a sprint. LTACH treatment, though, is the beginning of the marathon to recovery. Outcomes are measured over weeks and sometimes months, ultimately leading to longer-term recovery at skilled nursing facilities, nursing homes, and at home. The standard of care is the same as in the short-term hospital setting; however, the risk management challenges are more complex.

MLAP understands the risk intricacies involved in all aspects of long-term care, including long-term acute care hospital treatment. Let us share our expertise with you in gaining further insight into the standard of care involved in complex post-intensive care patient needs, ventilator liberation, complicated wound care treatment, and management of multiple critical diagnoses.

We swim in a river of information.

Every day, we sort through data as we figure out what’s best for patients and the health care organizations we lead. It allows us to figure out the best treatments for folks while giving us an organization-wide perspective.

At least it should.

Too often, the data we’re swimming through is polluted. The gunk could come from disparate systems not lining up or poorly communicating information from one to the other. On the other hand, it might simply be outdated, so many dead fish floating alongside us in the murky water.

So let’s clean up that river. Let’s dig into that mucky, fetid swamp. Here are the main pollutants organizations face, along with a path forward.

Pollutant one: Poor data processing for patients

When it comes to treating patients, the central contradiction providers face is this: Data means everything, but the systems for collecting and accessing it vary wildly. Electronic health records have been haphazardly implemented worldwide and also bring associated security risks, while old-fashioned paper files are limited to their time and place.

Or as Kasaw Adane, Mucheye Gizachew and Semalegne Kendie wrote in Risk management and Healthcare Policy back in 2019:

“Poor medical data processing systems are the key reasons for medical errors. Employing standardized data management systems reduces errors and associated sufferings. Therefore, using electronic tools in the healthcare institution ensures safe and efficient data management. Therefore, it is important to establish appropriate medical data management systems for efficient health care delivery.”

Sounds simple enough, right? Make the transition and swim in the pure, clear water.

The authors even suggest that “effective use of EHR improves the patient’s safety, trust, and their satisfaction on the health care system appeared orienting patients towards a health-related information sources.”

Unfortunately, the security risks mentioned above continue. And electronic records adoption has lagged around the globe. Physicians don’t always believe in the platforms or have the time or interest to learn them. Moreover, a whole legal framework exists for understanding and grappling with these records.

Finally, even if you have an extant electronic health records system, it may not be sufficiently integrated into your organization. Fixing problems and setting goals depends on using that information correctly. And that leads us to our second pollutant.

Pollutant two: Feeding big data the right information

Electronic records serve individual patients. But if those records can be brought together with hundreds, thousands or millions of other patients’ records, you have a truly game-changing medical breakthrough.

Why? Think of it this way. Other patients’ experiences can inform the treatment of any individual. And other overall pictures can help institutions figure out what works and what doesn’t.

“Big data analytics has enabled doctors to access a holistic view of a patient’s health history,” writes Dmytro Spilka for Smart Data Collective. “Additionally, patients may find themselves more empowered with information and are taking charge of their personal health through big data insights.

“This trend has enabled doctors to design accurate intervention programs to treat diseases long before they can progress to more complex advanced stages that can be expensive and difficult to treat. Big data analytics is actively shifting healthcare delivery paradigms away from a reactive approach and more to a preventative approach.”

Sean Parker, writing for the same publication, notes that healthcare organizations can become more competitive by crunching numbers and communicating better.

The overall result? More profits.

But that doesn’t mean that you’re swimming through peaceful waters. Oh no. You will be faced with data entry and collection problems across the board. You will be faced with outdated computer systems and IT infrastructure resistant to the kind of innovations necessary.

“Inefficient data entry and collection practices are a significant source of waste among care providers and healthcare organizations,” Parker writes. “Advanced data collection technologies enable providers to automate many of these redundant practices. This will result in savings for healthcare organizations.”

Cleaning the river for everyone

Making sure that the data we all swim through works will take a collective effort.

That’s why a firm like Med Law Advisory Partners exists, to help you figure out your system pitfalls and how to clean your stream or river or ocean to near transparency.

As Alicia Davis, RN, LNCC, the founder and CEO of Med Law, puts it:

“We can stay ‘downstream’ in reactive mode, monitoring the increase in severity of patient harm events and repeatedly defending the same claims as we watch claim values continue to rise. Or, through innovation, problem-solving and creatively managing our resources, we might have the opportunity to improve ‘the way we’ve always done it’ – with the goal of driving down the cost of care delivery, building more efficient systems, increasing team member satisfaction, and, ultimately, having safer, healthier patients and communities.”

Together, we can make our processes and data work for us the right way. We can ensure that providers and caregivers have modern and efficient systems and that the information they collect helps the patients and our organizations thrive.

Our patients and providers deserve no less.

Let’s start today by making a promise between one another.

We’re not casting blame in any direction.

Talking about the medical field these days can feel like tiptoeing through a minefield, as health care professionals who endured the last two-plus pandemic years rightfully demand recognition for their sacrifices and professionalism. Likewise, patients across the board – but especially those who are older or in long-term care facilities – have often felt overlooked and dismissed.

The entire situation has left everyone, patients and providers alike, frustrated and exhausted. Yet too often in looking at the problems and searching for solutions, it feels as though the two sides are talking past one another.

There seems to be a disconnect.

Today we’re going to see what we can do about bridging that disconnect. But we’re not going to say anyone has caused the problem individually or that anyone has set out to create the problem. Medical professionals want to do the best for patients by using all they’ve learned. Those inside the healthcare system want to get better.

So for a first step, let’s lay down our respective arms and deal with one another face to face.

This needn’t be complicated or painful, but it should at least be honest and transparent. Here are three ways the disconnect has erupted before our very eyes and two things we can do about it.

Problem one: The pandemic has reshaped our health care system — for everyone.

It doesn’t matter who you are. You could be a doctor or a nurse. You could be a patient or the family member of a patient. You could be someone who suffered an extreme case of COVID-19 or someone who has managed to go through the last two years plus unscathed.

Regardless, the pandemic has changed you. Back in February, Health Affairs crunched the numbers to show just how much.

Here are their big four changes:

• U.S. life expectancy has dropped by a staggering 1.8 years. And before you say this happened around the world, please note that this change is three times as much as that seen in peer countries.
• Fewer people actually used health care in 2020. They have yet to make up the delayed or missed appointments, with all of the toll on the general population that implies.
• Spending on the sector from consumers and insurers declined for the first time ever in 2020, but robust federal relief boosted the overall sector.
• Finally, most folks experienced telemedicine. While that helped keep some people in touch with health care professionals, we still saw that one in four adults went without care during that time.

What does this mean for health care providers? Stress, stress and more stress.

Doctors and nurses faced unparalleled daily stresses. Government dollars flowed in, then were reduced. Insurers covered some things but not others. The public became sicker and went to fewer appointments, meaning that providers had to deal with more complex cases. And while telemedicine allowed for greater convenience, learning a new platform with new advantages and drawbacks took time and effort.

Problem two: Baby Boomers are putting exceptional new stress on the system.

As we wrote about on this blog back in August, providers in the long-term care field are facing an avalanche of problems in the years ahead.

Some of those problems apply more generally, to all health care providers.

Baby Boomers – one of the largest generational cohorts – are shifting from vigorous late middle age into the elder years.

CNBC reports that the oldest baby boomers will begin turning 80 in just three years from now. Some of those folks will require skilled, round-the-clock care, while others will simply be going to health care professionals more often.

“This is an enormous issue,” said Howard Gleckman, a senior fellow at the Urban Institute, in the CNBC story. “Advances in technology and public health have allowed people to live longer in a condition of frailty, and we haven’t developed a long-term care system to keep up with that.”

Throughout their lives, Baby Boomers have been accustomed to having society move around them, shifting to meet their every whim. They will no doubt expect the same of doctors and hospitals, nursing homes and hospice centers.

They’re coming, and we don’t have much time.

Problem three: Not all patients have been treated equally.

With all of the aforementioned in the air, doctors could be forgiven for trying to do as much as they can, as quickly as they can. Patients need taken care of, demographic shifts need addressing and it all needs done yesterday.

Problems happen, unfortunately, when these health care providers act before thinking. More and more patients are paying attention and noticing when their care falls short, according to a report from the New York Times.

“We know that women, and especially women of color, are often diagnosed and treated differently by doctors than men are, even when they have the same health conditions,” said Karen Lutfey Spencer of the University of Colorado, Denver. She studies medical decision-making.

Patients have seen the pattern repeatedly.

Times reporter Melinda Wenner Moyer offers an easy list for patients to see if their health care providers are gaslighting them. That means ignoring or dismissing what patients say, up to and including suggesting they’re making it all up.

• “Your provider continually interrupts you, doesn’t allow you to elaborate and doesn’t appear to be an engaged listener.
• “Your provider minimizes or downplays your symptoms, for example questioning whether you have pain.
• “Your provider refuses to discuss your symptoms.
• “Your provider will not order key imaging or lab work to rule out or confirm a diagnosis.
• “You feel that your provider is being rude, condescending or belittling.
• “Your symptoms are blamed on mental illness, but you are not provided with a mental health referral or screened for such illness.”

As stated way back at the beginning of this piece, we’re not blaming anyone. Any single health care professional is likely doing his or her best. But you can’t afford to treat patients as obstacles.

Solution one: Give patients the power.

One of the very best ways to address all of the three problems just listed?

Take a step back and let patients have their say.

“I always tell my patients that they are the expert of their body,” said Nicole Mitchell, the director of diversity, equity and inclusion for the obstetrics and gynecology department at the University of Southern California, according to the Times. “We work together to figure out what’s happening and what we can do about it. It really should be a shared decision making.”
That simple advice applies in so many situations for health care providers. If you’re seeing a patient who has avoided medical care since the spring of 2020, take the time needed to listen to their reasoning and how they’ve taken care of themselves in the interim.

If you’re dealing with a surging wave of aging Baby Boomers, similarly, let them outline their concerns. Yes, older folks may have more symptoms and concerns. Let them share their experiences and listen with open ears.

Finally, if patients say you’re not hearing them, stop everything and make sure you do. Don’t just nod and think about your next appointment. Actually take the time. Imagine what you would do if another doctor shared these symptoms, rather than a patient.

If you’re a patient, you have options as well, wrote the Times’ Christina Caron.

“See another doctor if you feel dismissed,” McGregor advised. That might mean finding a physician who is a woman or person of color, someone who might “understand your perspective and language.”

You can also simply try to reframe the discussion you’re having with a health care provider or, if you feel comfortable doing so, appealing to their supervisor.

Solution two: Help is out there for providers as well.

Med Law Advisory Partners understands and appreciates these stresses. We’ve seen the landscape from the perspectives of providers and patients.

“Our medical-legal team is comprised of highly experienced legal nurse consultants and dedicated support staff,” they note. “In addition to a nursing degree, our registered nurses have extensive clinical experience in the areas of acute/critical care, long-term care, health systems management and many specialty areas within the nursing profession. Additionally, 75 percent of our legal nurse consultants carry the Legal Nurse Consultant Certified (LNCC) certification.”
And while Med Law does handle malpractice matters, its goals and knowledge go much further. They also provide executive consulting to hospitals and healthcare systems to identify risks and impact healthcare delivery within the enterprise.
Providers need a trusted partner who understands the changes we’ve all been through, while continuing to put patients first. That’s what Med Law offers.

While there might seem to be a disconnect, we can help connect those pieces for you.

Pennsylvania courts and health care providers are clashing over two fundamental principles: The right to pursue equitable justice and the ability to access quality health care.

At issue: Where do patients pursuing malpractice claims file their cases?

Until recently, they were limited to the counties where the harm allegedly occurred. Health care providers – and every other nongovernmental entity – followed the looser, standard rules of civil procedure. They could file a case in any county within the Commonwealth. A committee set up by the state Supreme Court decided that was unjust and recommended a change.

Here are the top five takeaways from the change.

The committee saw the same as a matter of justice.

While agreeing that there may have been good reasons to limit where the suits could be filed at one point, the Civil Procedural Rules Committee decided they no longer held water. What’s more, they located a fundamental injustice in the arguments of health care providers.

“There appears to be a misconception that patients harmed by the negligent actions of healthcare providers somehow enjoy a windfall verdict in more populous counties,” the committee wrote in its majority report. “Many of these patients have endured substantial injuries seriously lessening their quality of life in perpetuity, requiring permanent medical care and assistance in activities of daily living.”

In other words, while providers may have to grapple with higher malpractice insurance costs or providers leaving, those harmed by medical malpractice bear great burdens of their own.

The committee looked at three pieces of hard evidence.

Jeffrey A. Krawitz at the National Law Review highlighted three factors noted by the committee. Taken as a group, members said, they showed that the time had come for a change in how venues were selected.

• “The court’s own data showed that medical malpractice filings had significantly decreased in the past 15 years.
• “Not only was there a significant decrease in the number of cases filed, but also in the number of claim payments—resulting in less compensation for victims of medical malpractice.
• “The current venue rule provides special treatment for a particular class of defendants, with the soon-to-be-implemented changes providing fairness of process.”

Pennsylvania hospitals aren’t happy about the change.

Andy Carter is the president and CEO of the Hospital and Healthsystem Association of Pennsylvania. He told Ron Southwick of Chief Healthcare Executive that he worried about the malpractice as mentioned above costs, as well as doctors choosing not to work there. That could all ultimately lead to hospitals offering fewer services to fewer people.

“We’re going to continue the conversation pointing to the risk that this rule change puts Pennsylvania in, in terms of access to the healthcare they have now, especially in the climate we now face,” Carter said. “This is as much about the fragility of the healthcare delivery system as whatever a jury award might be. There’s a great deal at stake here for all Pennsylvanians.”

Trial lawyers see it as a long-overdue triumph of fairness.

As you might expect, they see the change as a triumph for the little guy (and gal).

“Plaintiffs in medical malpractice cases shouldn’t be limited by venue rules while the defendant enjoys a home-field advantage,” said Kila Baldwin, the president of the Pennsylvania Association for Justice, according to Angela Couloumbis and Stephen Caruso of Spotlight PA. The association represents trial lawyers in the Commonwealth.

“The new rule levels the playing field and will improve access to justice for all Pennsylvanians,” Baldwin added.

Keep your eye on city centers to figure out what happens next.

So what does this all add up to for Pennsylvanians? The Associated Press suggests that potential litigants will hightail it to major population centers.

“The decision by the state Supreme Court is likely to mean the number of such lawsuits will increase in Philadelphia and Pittsburgh, where jurors are considered to be more sympathetic to patients and more likely to produce larger verdicts,” Mark Scolforo wrote for the news service in August.

Whether that exodus occurs or not, it’s clear that Pennsylvania’s highest judges have decided that the time has come for a profound change in the state’s malpractice litigation landscape. It will be up to health care providers, their lawyers, litigants, and their attorneys to figure out what that means in practice.

Health care doesn’t work like other professions or industries. Errors and mistakes have direct consequences on the lives and well-being of patients – not in some metaphorical way, but in the literal, immediate now.

That’s the focus and passion of Alicia Davis.

As the president and CEO of Med Law Advisory Partners, she draws on her extensive nursing, legal and leadership experience to guide health care professionals. Here are seven lessons she offers to those in the field.

Be proactive.

COVID-19 has walloped the healthcare field. Government requirements and regulations have continually shifted, based on whoever wields power from Washington, D.C. The result?

“Healthcare professionals and organizations have been forced into a reactive mode in many cases when dealing with claims, only digging deep when necessitated by the prospect of looming litigation,” Alicia says. Leaders can overlook what’s going on all around them. Insights might lurk in while managing that very litigation. 

Alicia says that by staying stuck in tunnel vision, they’re “foregoing legitimate opportunities to strengthen current quality and risk initiatives in an effort to impact patient outcomes ‘real-time’ and potentially the frequency and value of claims in the future.”

Ask ‘why’ … then ask ‘why’ again.

Med Law Advisory Partners has seen time and time again that this reactive mindset damages care in multiple ways. As just noted, it means up-to-the-moment information might be overlooked. But it also discourages deeper reflection.

“Dig deeper and discuss specific exposure areas — helping the clinical team understand the WHY, not just the first why,” Alicia advises. “It’s not enough to report on instances of ‘failure to properly monitor’ or ‘pressure injury,’ as we see in many loss run reports, for example.

“What specifically happened? Was there a lack of appropriate staffing during the resident’s change of condition? Was there temporary staff on the unit unfamiliar with facility policy? Was there an EMR glitch that didn’t capture a wound consult referral?”

Clinicians can make life-saving changes if you ask these questions. But you have to have the courage and persistence to ask them.

Determine when something is a reason or an excuse.

Yes, Alicia knows this sounds like a lot. She understands that you and folks on your team may believe you have abundant reasons to avoid such reckonings. But are these really reasons, or excuses preventing a difficult reckoning?

“You may think, ‘I don’t have the time, the resources, or the budget to take on a new project, let alone the expertise to aggregate data.’ I know. I’ve been there and I’ve sat across from leadership teams that tell me the same thing.”

Med Law, however, has a process that has worked repeatedly and effectively with its clients. Step by step, the team analyzes claims and medical records, asks the difficult questions, shares information throughout varying information silos and produces reports explaining what they learned.

As W. Edwards Deming noted, “Without data you’re just another person with an opinion.”

Be creative.

An analogy explains this directive perfectly.

“If a patient presents with a persistent cough, most practitioners would be remiss to simply provide a cough suppressant and send them on their way. Looking at individual claims in a vacuum is like only looking at one symptom; we miss the larger diagnostic picture,” Alicia points out. “Or, if a patient presented with chronic headaches, we wouldn’t spend the next two years monitoring the research for up-and-coming treatments instead of treating the patient in front of us.”

The point is, too often individual claims are looked at one-by-one, rather than taken as a whole. Like the canny physician, those running health care institutions should examine the entire situation and think creatively. What’s happening in the environment of the person coughing? Does the patient with chronic headaches have a short door they continually bang their head against?

Focus on the step in front of you.

Health care leaders have to manage a lot right now. They have to manage during a pandemic. They have to deal with persistent staffing shortages. They have to deal with lagging government reimbursement. But the only way out, as the saying goes, is through.

“With a burdensome regulatory environment, complex legal issues, quality and safety performance, financial sustainability, and a precious workforce that is more stressed and vulnerable than ever before, organizations must be able to manage multiple priorities simultaneously,” Alicia says.

Look at the big picture.

There’s another good reason for leaders to tackle one issue at a time. Things won’t likely get better soon, which means being realistic about each successive step.

“Given the industry’s current state, healthcare organizations will likely not be able to significantly impact their shortage of staffing and resources in the short term,” Alicia says. “Everyone is doing more with less.”

That means using a framework to comprehend the problems and issues we all face, comparing it with our current efforts, and seeing where the gaps are. Then we take immediate and forceful action.

Remember our why: the bigger big picture.

And why do we take that action? Because our business is, when you get right down to it, about taking care of people. We take care of patients, our staff members and the communities in which we work. If we lose sight of that biggest big picture, we risk losing everything.

Or as Alicia says: “We have the opportunity to improve ‘the way we’ve always done it’ with the goal of driving down the cost of care delivery, increasing clinician satisfaction, building more efficient systems, and, ultimately, having safer, healthier patients and communities.”

That’s a goal that all of us can hopefully get behind. That’s why Med Law Advisory Partners stands ready to help you and your organization apply these lessons every day.

Those working in long-term care could be forgiven for wondering just what they did to make the universe so angry. Budgets were already tight and staff stretched thin before the COVID-19 pandemic hit. Everyone suffered in the maelstrom that followed, and those working in the field held on by the skin of their teeth.

With the pandemic finally tamed by vaccines, antivirals and immunity (not to mention a fair amount of apathy), it’s time to move on to a bright tomorrow, right? Wrong. The post-acute sector faces enormous obstacles in the years to come. If you thought it was bad before, the challenges to come might make you positively nostalgic for face masks.

Here are five upcoming obstacles, along with two ways that you can manage them in these uncertain times.

Obstacle 1: Ready or not, baby boomers will place astonishing new pressure on the system

According to CNBC, the oldest baby boomers will start to turn 80 in 2025, also known as three years from now. A gigantic demographic cohort will enter an age range in which many require skilled care in nursing homes.

“This is an enormous issue,” Howard Gleckman, a senior fellow at the Urban Institute, told CNBC. “Advances in technology and public health have allowed people to live longer in a condition of frailty, and we haven’t developed a long-term care system to keep up with that.”

Financial pressures could be overwhelming. Some 45 percent of the demographic don’t have anything saved for retirement, and of those who do, more than a quarter have less than 100,000. Meanwhile, the average annual cost for a nursing home room was $102,000 — in 2019.

Obstacle 2: The Supreme Court could open up government-owned nursing homes for greater liability.

If you think this nation’s court system will come to the rescue, you’re mistaken. As a matter of fact, the U.S. Supreme Court may be preparing to make everything much worse.

As Med Law Advisory Partners shared this summer, Talevski v. Health and Hospital Corporation et al. could upend the nursing home legal landscape by allowing plaintiffs to pursue cases based on federal law, not just state rules. 

We wrote in June that: “Court watchers note that if the Supreme Court agrees with the 7th Circuit, the result could be financially onerous for government-owned nursing homes, especially because these lawsuits could result in significant verdicts against nursing homes that are outside of any statutory damages caps, plus the award of attorneys’ fees.”

Of note: The government owns 1,007 facilities, and half of them are in Indiana. So the Hoosiers among us will want to pay attention.

Obstacle 3: More False Claims Act investigations could be coming down the pike, putting everyone on high alert.

Speaking of the federal government, the Justice Department has recently taken an interest in long-term care facilities.

A June 22 post at JD Supra outlines what the department is doing. It’s “increasingly utilizing substandard quality of care as the basis for False Claims Act cases as part of the National Nursing Home Initiative launched by the DOJ in March 2020. Last year alone, the federal government collected over $5.6 billion in recoveries under the False Claims Act.”

Med Law outlined the issue and its implications for readers in July. To summarize, the government argues that facilities providing substandard care are making a false claim when filing for government reimbursement. Given the variety of laws and regulations that apply to long-term care, that could open providers up to liability in unexpected — and expensive — ways.

Obstacle 4: States are already being battered by nursing home closures, with more on the way.

Beyond demographic changes and unpredictable government actions, nursing homes grapple every day with familiar problems. Staffing shortages and high costs have become just another part of the landscape.

Unfortunately, even familiar potholes can still wreck your car.

McKnight’s Long Term Care News reported in August 2022 that Montana has seen seven nursing homes close in six months, meaning a total of 10 percent of beds in the state have vanished into thin air. That’s part of a national trend, with 1,000 facilities closing over the past seven years.

 “The workforce shortage was exacerbated by the pandemic,” Rose Hughes, executive director of the Montana Health Care Association, told McKnight’s. “The shortage means large increases in wages, benefits, bonuses and other incentives, as well as a significant increase in the use of high-cost agency workers. It also means that facilities are turning away people who need care, because they can’t find or afford enough staff to provide care.”

Replacing these lost beds won’t be simple or even viable, given the state-by-state challenges. And as we saw at the beginning, upcoming demographic changes will only increase demand. What will happen to older folks in Montana?

Obstacle 5: Think you have a workplace shortage now? The government is looking carefully at payments.

Speaking of retaining staff, the government has added another wrinkle to the situation.

McKnights covered the entire mess last month, and while the particulars involve the wild and wooly world of Medicare pay rights, here are the basics. The government created a new pay system in 2019.

“After its debut, however, providers and regulators alike quickly suspected that federal payments were more generous than the system’s budget-neutral stipulation called for,” Danielle Brown wrote. “But five months into PDPM’s implementation, the full force of the pandemic hit, throwing the U.S. healthcare system into a state of uncertainty it had never before encountered. Any plans to readjust PDPM payments were indefinitely postponed.”

The government, being the government, has decided it wants that money back. After proposing to do it all in one year through cuts, it listened to the industry and decided on a two-year phase-in. An overall increase in funding means that the reduction ultimately won’t sting the way it could have.

“Thousands of providers, lawmakers, and stakeholders shared how a swift cut to Medicare would be detrimental to our nursing home residents and staff, and we are grateful that CMS listened and made the necessary changes,” said American Health Care Association President and CEO Mark Parkinson.

That won’t be the last time the government tries trimming nursing home payments.

Solution 1: Take a long, hard look at your long-term needs

We’ve gone through the challenges and potential challenges.

Now it’s time for some self-reflection. Think about how you and your organization fit into this sometimes scary landscape.

Don’t tell yourself happy stories about the future and assume all will work out for the best. Now’s the time to take all of the above into account and make a serious appraisal of your long-term care facility. Are you ready to face the challenges? Are you already nearly underwater? What are you worried about today, tomorrow and a few years from now?

These issues should only escalate as time passes. A clear-eyed appraisal of the American political system would suggest that an overhaul of our health care system won’t come anytime soon (not that it would be guaranteed to solve the problem in the first place).

Solution 2: Find an experienced partner to help you navigate this forbidding landscape.

Yes, it’s a lot to take in right now. Nursing homes and all those who help them serve patients and prosper financially have gone through one wringer, with more wringers promised.

Yet Med Law Advisory Partners stands ready to assist. They have deep experience in reducing risk, improving patient care and helping facilities look out for their bottom line.

As they state, their “team has worked with owners/operators of senior-living care facilities for over 20 years, helping mitigate risk and manage claims. Med Law consultants have extensive expertise working in direct patient care and administration in long-term care facilities, contributing an unparalleled depth of knowledge of issues and guidelines unique to post-acute care claims.”

That depth of knowledge makes a difference. Long-term care facilities might not be able to make the universe less angry at them, but they can take common-sense measures to fortify themselves and provide the best possible care, while taking care of their employees and managing costs.

A health care enterprise involves dozens of teams and specialties, from those providing care to those handling administration to those providing legal services. Unfortunately, too often, those teams and specialties cluster together without communication and input between one another.

They’re siloed. Apart. Disconnected. Working toward their own goals without fully understanding what others are doing.

Here are five things to know about silos that develop in the health care industry, along with the toll they exact and the benefits we all could achieve by breaking them down. (How do you actually break them down? That’s another conversation.)

Horizontal relationships matter just as much as vertical ones.

Laurence Sperling is chairman of the World Heart Federation group on the Roadmap for Cardiovascular Disease Prevention among People Living with Diabetes and a professor in preventive cardiology at Emory University School of Medicine. He outlined the difference between horizontal and vertical relationships for the World Economic Forum.

“People always tend to prioritize vertical relationships in their day-to-day job – that is, relationships with their boss, and direct reports,” he wrote. “Yet … companies with more horizontal collaboration achieve greater customer loyalty and higher margins. In healthcare, the same principles are true. It is in the horizontal communication space – expert to expert, department to department – that real gains in both patient outcomes and economic savings can be found.”

What are your workplace relationships like? Are they mainly vertical? Or does your employer emphasize efforts to communicate horizontally?

It doesn’t just hurt the organization. It hurts patients and workers.

While we usually look at the problem of health care silos from an organization-wide perspective, it creates real problems for the individuals inside it, writes Raquel Meneses and João Caseiro of Portugal’s University of Porto in a unique academic paper on the topic. Patients and providers bear the brunt, meaning the pressing health care problems don’t get solved and dedicated professionals encounter friction.

“Silo mentality compromises the efficiency of the organization and promotes conflicts, redundancy and waste. It distresses and demotivates the employees and frustrates clients who receive worse care and do not have their problems solved on time,” they write. “Silo mentality in healthcare can be defined as the set of individual or group mindsets that can cause divisions inside a health organization and that can result in the creation of barriers to communication and the development of disjointed work processes with negative consequences to the organization, employees and clients.”

In other words, you might easily underestimate how destructive this siloed mentality can be in health care. It takes a profound toll that can easily escalate.

The costs aren’t just about feelings. They also cost us financially.

Can this toll be estimated in dollars and cents? You bet it can.

Vikram Savkar, an executive at the Medicine Segment of the Health Learning, Research & Practice business at Wolters Kluwer, shared an alarming estimate: “One study from 2019 in the Journal of the American Medical Association estimated the waste in healthcare expenditure due to failure of care delivery, overtreatment, or low-value care ranges from $178B to $268B annually.”

That suggests the waste from siloed thinking could easily exceed a trillion dollars over five years, and two trillion dollars over a decade.

Break down the silos? You can save money and improve patient care.

On the other side, we don’t just see a reduction in waste. We see the promise of actual savings in providing health care to patients. In a Harvard Business Review article, Yvelynne P. Kelly, Diane Goodwin, Lisa Wichmann and Mallika L. Mendu describe efforts in dealing with end-stage renal disease. 

Their coordinated program includes “dialysis units, hospitals, primary care providers, and others” and has seen encouraging results. Emergency room visits are down, and transplants have been arranged.

Strikingly, “by reducing healthcare utilization and facilitating transplantation, we’ve thus far saved twice the amount that it costs to run the program,” the authors write. “In one slice of the data, we calculated $428,000 in savings from 74 avoided ED visits and 34 avoided admissions, and over $1 million in savings attributable to facilitated transplantations.”

What’s more, we can focus on treating the whole patient, not individual problems.

All of this brings us, finally, to the patient. Kam Reams and Alan Little point out in Becker’s Hospital Review that “episodic approaches to care delivery interfere with overall care by ignoring the totality of an individual’s health, leading to duplication of services and increased costs. Reimagining the healthcare system to focus on holistic approaches requires a more open exchange of information and shared accountability. Shifting to a holistic healthcare system will break down the operational silos that are inherent to episodic care and support higher quality collaborative care.”

If you want to learn more about the benefits of dissolving the silos between your health care and legal services team, as well as how your organization might tackle the challenges, get in touch with Med Law Advisory Partners. Med Law has the extensive experience needed to show how you can break free of bad habits and put staff and patients first — all while reducing waste and saving money.