Long term care (“LTC”) facilities are obligated by regulation to implement policies, procedures and protocols (“PPPs”) on methods of practice and modes of providing care. PPPs in the hands of adverse counsel can prove problematic for facilities. Thus, certain measures can be taken to prevent use of PPPs against facilities.
LTC regulations of many states require that facilities promulgate policies on all aspects of their business, including record maintenance; personnel matters; physician, nursing, pharmaceutical, dietary, activities, social, and rehabilitation services; resident rights; quality assurance; and security. Most regulations require periodic review and update of these PPPs.
PPPs have been used in litigation against facilities for the purpose of asserting that failure to follow the PPPs constitutes standard of care violations. This litigation practice can be effectively limited or prohibited by careful drafting and regular updating of policies and by challenges in litigation.
In the standard negligence claim, a plaintiff must prove a duty and breach of the duty that proximately caused harm. In LTC cases, a typical negligence claim is that the facility had a duty to reposition residents to prevent development of pressure ulcers. The facility failed to reposition, breaching the duty. As a result of the breach, the resident developed pressure ulcers, suffered pain and died from sepsis. In this scenario, a plaintiff will request production of all policies, procedures and protocols on repositioning. The LTC facility’s policy provides that residents at high risk for pressure ulcers must be repositioned hourly. The generally recognized standards are that bed repositioning should occur every two hours and chair repositioning should occur hourly. In this hypothetical, the legal issue related to negligence duty is whether the facility was negligent by not following its internal PPPs which are a higher standard than the recognized standard of care in the LTC industry.
Courts across the country have handled this legal question differently. The Supreme Court of Virginia has held that internal rules cannot be the negligence standard or duty. The rationale applied is that facilities should not be penalized for aspiring to a higher standard. Conversely, facilities should not set standards lower than those recognized in their industry to avoid liability. When confronted with motions to compel production of PPPs, Virginia trial courts have decided in a variety of ways, but have held that PPPs cannot be used to form expert opinions on standard of care or negligence duty. When plaintiffs admit their intentions of having their experts use PPPs to opine on standard of care, most Virginia courts do not require their production. To avoid poisoning the well, other courts have ruled that experts cannot have access to PPPs until their opinions have been designated and they have been deposed. Some Virginia trial courts have ruled that PPPs can be produced, but cannot be provided to standard of care experts. A few Virginia courts have ruled that PPPs can be produced, and if the plaintiff provides those PPPs to standard of care experts, the plaintiff runs the risk of having those experts’ opinions excluded at trial.
LTC facilities can prevent use of their PPPs against them in several ways. Instead of placing higher aspirations in PPPs, aspirational goals may be better located in documents that are not PPPs or may not be in written form at all. Many LTC experts maintain that facilities should adopt only the regulatory standard or the well-recognized industry standard in the PPPs.
An additional concern for LTC facilities is use of PPPs in a later litigation against the same facility. To avoid this later use, LTC facilities required to produce PPPs can insist on a protective order limiting use of the PPPs to the current litigation and requiring return or destruction of the PPPs at litigation conclusion. Updating and re-dating PPPs annually can avoid their use in later litigation because the PPPs may not be from the relevant time frame.
Policies, procedures and protocols are necessary for operation of long term care facilities. When creating them, facilities should be very careful about their content and mindful of how they can be used in litigation.