A recent report (“Report”) from Marsh and Oliver Wyman, both businesses of Marsh McLennan, showed that the costs of liability claims have grown steadily throughout the U.S. in senior living in recent years – a trend many other industries are facing.
Among the findings in the report is that claims in excess of $1 million more than doubled from the period of 2014-16 to the period of 2017-19. More about the study, “2024 General and Professional Liability Benchmark Report,” can be found in a related Senior Living Executive article.
With those trends in mind, some authors of the study spoke with Senior Living Executive about the best practices for operators in today’s liability landscape. Here is a collection of the insights that they shared.
Focus on wellness
With falls being the largest driver of liability claims, helping residents to stay fit and healthy is one way to help lower the occurrence of falls with injury and the possibility of liability claims. As JoAnne Carlin, senior vice president clinical risk at Marsh, noted, “The population that’s being served in senior living, especially assisted living, are older adults with pre-existing health care conditions, along with fragility that comes with aging.”
“With our senior care clients, we focus on wellness and working with residents to keep fit,” Carlin said. “This includes identifying the resident’s needs and goals and making physical and occupational rehab available, conducting exercise programs, and ensuring that they are engaged socially so they’re not isolated. These types of programs contribute to their overall well-being.”
Establishing realistic expectations at the outset
An aspect of falls management that is important is setting realistic expectations for new residents and their families when they are admitted, particularly considering the basic fact that those over the age of 65 have a heightened risk of falling. Too many residents and families get the impression that falls can be prevented at senior living facilities – rather than potentially reduced. Doris Fischer-Sanchez, senior vice president clinical risk at Marsh, said assisted and senior living is doing a better job of articulating “who we are and what exactly we do,” but there remains important work to do in that area.
As part of the communication around realistic expectations related to falls, Carlin recommends that sales teams have scripts to use when speaking with prospective residents and their loved ones.
She explained, “Your sales teams should be prepared to discuss what the facility offers in the community, but also to explain, ‘If your father’s been falling at home, he’s probably going to fall when he moves into the community. What we’re going to try to do is prevent him from being injured when he falls, and we’ll be there to take care of him if that happens. Of course, we’d love to prevent every fall, but that is not going to happen.’”
Carlin said she knows of several companies with documents that outline the risks for falls that they deliver to a prospect and their family to review.
“That’s definitely not a bad practice,” Carlin said. “Some have the prospect sign the document and include it in their file.”
Beware the ramifications of unspoken assumptions
Tara Clayton, a managing director in Marsh’s Senior Living & LTC Industry Practice, said family and resident misperceptions or assumptions are not from overt “overpromises” from providers that they will prevent falls. Rather, when communities are describing their services, care, and amenities, a prospect and their family can easily get the impression that all of their concerns will be solved with this admission, including that their loved one may no longer experience a fall.
“We have seen in these claims that families can develop misconceptions of what 24 hour / seven days a week staff comments mean to them, and operators need to make sure they are setting expectations that they do not have a magic wand to prevent every possibility that contributes to why individuals fall.”
The advertising that some law firms do can further strengthen the off-base assumptions of residents and their families.
“You’ve seen the commercials,” Clayton said. “Pretty much every commercial we see on TV advertising for lawsuits against a long-term care or senior living company asks, ‘Has your mom fallen?’ The assumption from that question is that if you’ve experienced a fall, it was due to negligence on the part of the community. We know that is not the case, but unfortunately, that’s the assumption and bias that we’re up against. We have to understand that many consumers do not understand the aging process like those that live and breathe it every day. And this is usually the family and prospect’s first encounter with a senior living community, and they don’t really understand what happens inside on a day-to-day basis. So, it really is on the prospective community, and the industry at large, to provide that education and context.”
An ongoing conversation
Setting realistic expectations, of course, is not merely for new residents and their families.
“It can’t be ‘one-and-done,’” Carlin said. “That resident from move-in day is probably in a different condition 18 months down the road. So periodically, you’ve got to have those touch points with the resident. That means talking to them about safety awareness as their health changes, as their physical ability changes, and then communicate with their families or their responsible parties.”
For instance, in the case of a resident with dementia, providers should ensure that loved ones know that the trajectory with dementia includes a higher risk for falls than other people of the same age.
“These residents and these families look to us to be the expert and to communicate the facts in a common person language,” Carlin said. “In nursing, we do something called ‘teach back’ so that when we talk to patients about their care before they go home, we tell the patient, ‘Now tell me what you heard me say, so that we make sure that you’re clear.’ That’s a good practice in senior living, too.”
If an event happens, new communication is necessary.
“When a resident does experience an event, a fall or just some other medical condition that might weaken them, we’ve got to go back in reassessing and help them be safe and help put a plan in place,” Carlin said.
Ultimately, the issue is not overcommunication with residents and their families, Clayton said.
“It’s not just about communicating when a negative event happens, rather it’s important to build a relationship with positive communications with families long before a negative event happens. Calling just to say things like, ‘Mom had a great day today,’” Clayton said. “Staff are incredibly busy and it’s hard to find time to make these types of updates, but it’s important to let families know you know what’s going on. This helps in several areas including preventing association that all calls from the community are “bad things.” But, more importantly, if a negative event later happens, that the family member receiving the call is more apt to feel confident in you and trust the information you are communicating to them.
Falls management plan
A major ongoing challenge for senior living operators is that there are 50 sets of regulations for 50 states, Fischer-Sanchez said. With that in mind, she said, “it’s always a good idea if senior living operators have policies that comply with their state regulations, and that they comply with the standard of care. That means understanding the scope and ability and the needs of the residents within the community. We walk a fine line. We’re a social model, but we have care.”
Fischer-Sanchez said operators should pay a great deal of attention to having a comprehensive falls management program throughout their sites, looking for environmental risks and making sure staff are trained about those possible risks.
“If you’re going to be focused on any type of claim in senior living, my recommendation starts with your falls management program and really looking at it, focusing on it and making sure that all of the staff – not just the care staff, but the front desk, the maintenance folks, everyone – is sensitive to the role that they play in helping to keep residents safe,” Fischer-Sanchez said.
Fischer-Sanchez said documentation is a critical piece of the process surrounding falls. Documentation of a plan and training should be thorough and frequently updated.
“That’s not just for the purpose of defensibility, but documentation is a way to communicate with other staff members of the service plan – shift to shift and day to day – to make sure that everyone knows what’s going on,” Fischer-Sanchez said.
Litigation management
According to the Report, the longer claims remain open the more expensive the claims become. That’s one of the reasons litigation management is so critical, Clayton said.
“We work closely with clients on understanding the importance of litigation management and implementing robust processes,” Clayton said. “This includes training your communities to ensure they understand that when a subpoena arrives at the community, that needs to be escalated through a formal process to ensure the correct individuals are engaged to see if there is a potential claim that needs to be addressed, investigated and reported. But litigation management is not just pre-claim processes, it is also post-claim. It’s important there are processes in place to ensure that someone at the company is ‘owning’ that claim development and understanding the claim strategy through working with defense counsel, your broker, and the insurance carrier. It’s important to understand the potential exposure early on because the sooner you can get in and try to resolve that claim, or at least have a game plan to defend, the quicker, you can work on getting that claim resolved or minimize the ultimate severity of the claim.”
