When it comes to healthcare, there is a fine line between duty and liability. Understanding how they work together is essential for clinical staff and executive management, according to Meredith Duncan, BS, JD, a Shareholder with Polsinelli PC in Chicago and guest speaker for a recent Forum webinar.

Ms. Duncan explained, in short, a duty is a moral or legal obligation, a responsibility, or a task/action that someone is required to perform. Liability often occurs when a person deviates from what they “reasonably” knew or should have known in their given role. Key to mitigating risk is recognizing and mitigating common causes of liability.

Ultimately, liability stems from people (family, residents, or staff) and is the result of human error. This may appear as failure to:

• Follow care plans or physician orders
• Assess/document care
• Adhere to policies in all cases
• Address warning signs
• Listen to intuition
• Hire the right staff or fire the inadequate ones
• Admit the right resident/s

Plaintiffs’ attorneys primarily seek to determine how a facility’s action or inaction led to a resident’s injury or death.

The Power of Prevention

Key to minimizing risk is developing, implementing, and adhering to organizational policies and standards—particularly as they apply to admissions, hiring/firing, and staff training. At intake, be cautious of red flags like multiple prior placements, challenging families, or unclear stories. When hiring, prioritize attitude over skills, heed warning signs, and trust your instincts. And ensure staff understands policies, procedures, and boundaries.

Take these proactive steps to manage risk: 

1. Self-Assessment: Regularly evaluate operations.
2. Risk Identification: Pinpoint potential issues.
3. Training Review: Ensure relevant topics are covered.
4. Quality Assurance Scrutiny: Examine QA processes regularly.
5. Mock Surveys and Preemptive Audits: Prepare for potential official inspections.

Understanding what causes liability – and taking proactive steps to prevent it is the key to effective risk mitigation. 

For more information on how to reduce liability, view the webinar, Legal Landmines: Risk Management & Liability Mitigation in Long-Term and Senior Care.