__________________________ Oklahoma Association of Homes and Services for the Aging 15th Annual Meeting and Exhibition I

1. __________________________ Oklahoma Association of Homes and Services for the Aging15th Annual Meeting and ExhibitionImagining the Future.…Who Decides?  Reed Conference Center, Midwest City, OK Thursday March 11, 2010 Manage Healthcare Expectations or Manage the Lawsuit! Presented by: Ric Henry, Pendulum, LLCFinding the Balance Between Risk and Defensibility

5. Where the claim money goes…

6. Most Frequent Claim Types

7. Most Frequent Claim Allegations-Where?

8. Not For Profit vs. For Profit

9. Trial Solutions Inc. New York Public Attitudes in Long Term Care Cases pjames@trialsolutions.com Phil James, J.D., Ph. D. (845) 296-1500

10. Public Attitudes are based onPerceptions and Expectations Time of admission expectations Understanding about staffing and roles of staff Knowledge about aging process Knowledge about disease process Belief that what happened at home shouldnot happen in facility (Falls, elopement, aggressive behaviors, etc) “What happens at home DOESN’T stay at home!”

11. Common Allegations in a Law Suit You were Negligent You violated the Resident’s Rights You broke your Contract with the Family You caused Pain and Suffering You were Grossly Negligent YOU DESERVE TO BE PUNISHED

12. Attitudes Relevant in LTC Cases Attitudes Towards: Large Health Care Corporations/Organizations Nursing Homes Promises Family Responsibility Passing, Mortality, Death

13. The Attitude Toward Promises The Feeling Sacred Promises, both made and broken, are the basis of fables The Belief What you say to the consumer at the time of admission is a promise

14. The Tonic for “Promises”:Realistic Contracting Your loved one won’t get one-on-one care Your loved one will decline Further conditions will develop Your loved one will not be returning to a living situation in the community They will pass at some point The family needs to prepare for the decline and passing

15. Family Recommendations Adopt a Family Practice Model Realize that your target customer is not the resident but the family As a general rule, family satisfaction is more important than resident satisfaction Conduct Family Satisfaction Surveys I INSIST Help me, Help you

16. Expectations Management To manage a reasonable person’s expectations about everyday occurrences

17. Why Do Residents (Families) Sue? Those who sue have stated: The providers did not listen; The providers were not responsive; They wanted an apology (and didn’t get one); They want to protect others and prevent ‘this’ from happening again; They want revenge; They want money; The facility did not meet expectations held by families and residents; And the number one reason people sue? >>

18. The Case of the Visiting Plaintiff Attorney The Stage Award winning multi-facility senior housing company, rated top 25 in nation, 20 CCRCs in eight states Facility noted to have moderate risk and defensibility issues after two annual Pendulum visits 2006–2007 (no arbitration, marketing promises, weak elopement protocol, weak ad/tx protocols) Facility response was less then aggressive (i.e., did not implement recommendations) Third year visit in Jan. 2008 under new carrier resulted in rating of High Risk/Weak Defensibility, many of the same recommendations Soon after third year visit, an event leads to lawsuit (filed July 2008) that ended with limit verdict (Im) for plaintiff in July 2009 Concern by underwriter generated risk assessments Jan. and July 2009: results “Moderate” concerns. Comment that while claims activity (five total) is issue, we saw no correlation between clinical ops and claims. “…appears to be isolated events…”

19. The Case of the Visiting Plaintiff Attorney The Show December 2009, account renews with higher premium and with stipulation that facility would participate in monthly risk management calls along with quarterly visits Kick off quarterly visit December 2009: Clinical systems check out Previous recommendations now getting implemented Corporate staff present and involved Consultant pleased with progress During consultant visit, a family member and an attorney arrive at the business office and ask to speak to the Administrator Administrator attempts to take position that without appointment he would not see them! (Our consultant quietly mentions that just maybe they want to talk about guardianship or something other than a complaint)

20. The Case of the Visiting Plaintiff Attorney The Show Concluded… Lessons Learned Consultant observes debate between Administrator, DON, and corporate staff on whether to meet with family Meeting is allowed, consultant overhears raised voices Outcome—Another claim on the way Lessons? How could this happen? Why was there any question as to whether to meet with family? How could there be a “debate”? Family actions and facility reactions could explain why no correlation between clinical ops and claim activity Weak staff orientation now takes on new meaning Managing EXPECTATIONS and perceptions must be a focus

21. “Expectations Management” is the art and science of creating systems and teaching staff to properly communicate what families and residents can reasonably expect to experience as they transition from life at home to life in your health care setting This includes incorporating “Service Recovery” techniques It begins with marketing to the local community and extends through the days, weeks, months, or years of life as a “resident” Identifying key points of influence times are the key to success What is Expectation Management?

22. Marketing (Yesterday) RESIDENT/ FAMILY Admission (Today) Care Planning (Tomorrow) Expectations ManagementKey Points of Influence

23. Marketing Pre/Post AdmissionTimeline and Points of Expectation Influence

24. Expectations ManagementPhilosophy or Process? Expectations Management is a Philosophy that can become a process The process must be supported by a measurable system It then becomes the task of the organizations distribution system (administrative or management company service) that disseminates “policy” or “policy guidelines” to ensure that Administrators are informed of current best practices

25. Use every encounter (or create encounters) with families and residents to continuously manage expectations for resident services and resident monitoring Educate residents and families during the admission process Set realistic expectations with potential residents Expectation Management Facility Level Protocols

26. Typical Admission Documents: Financial agreement Residents rights Numerous acknowledgements Rules and regulations Community handbook Enhanced Admission Packet Aging information Disease disclosure documents and acknowledgment signature Signed acknowledgments regarding risks if applicable Educational offerings regarding aging and disease Service recovery process explained—related to grievance protocol Expectation ManagementFacility Level Protocols: Admission Documents

27. Aging is a normal process People age at different rates based on genes, lifestyle, and disease Normal bodily changes that occur due to aging place the elderly at risk for certain conditions and outcomes Discuss physiological changes that occur with aging Provide Information about the common risk factors and conditions associated with the aging process Explain the effects of the normal aging process

29. Psychosocial Issues Surrounding Family’s Placement of a Loved One Anxiety Frustration Anger Sadness Disengagement Depression Guilt Loss of Control Stress Helplessness Powerlessness Grief Sense of Failure Loneliness Over Protection Hopelessness Recognize resident and family emotions regarding nursing home placement

30. Change in surroundings Change in daily schedules and routines Change in caregiver Separation from family Living with others, which affects privacy, noise levels, lighting, dining, etc. Loss of control The cons of entering a nursing facility

31. Increased socialization with peers Assistance with activities of daily living Provision of meals Maintenance of the environment Access to activities Earlier recognition of declining health status The pros of entering a nursing facility

32. Patient Expectations: How Do They Matter?By S. Jay Jayasankar, MD, American Academy of Orthopedic Surgeons  Now, March 2009 IssueUnrealistic Expectations are Preventable Triggers for Claims As professionals, orthopedic surgeons strive to positively influence the development of instruments being used to measure physician performance. The patient uses his or her expectation of the course of recovery and outcome as a tool to measure the physician’s performance. Physicians have the opportunity and the duty to provide patients with realistic expectations in this era of informatics and glamorization that tends to create unrealistic expectations. Studies estimate that half of the patients leave the physician’s office not understanding what the physician told them, and recall rates are generally low. The ‘expectation model’ of patient education, with its focus on developing realistic expectations, is good medical practice and a risk management tool because it focuses on patient understanding. As a result, the patient experiences the expected course of recovery and outcome, leading to increased trust and an enhanced patient-physician relationship. The latter, in turn, improves quality and risk management. It is all about expectations! S. Jay Jayasankar, MD, is a member of the AAOS Medical Liability Committee. He can be reached at jaymd@massmed.org http://www.aaos.org/news/aaosnow/mar09 It’s All About Expectations!

33. Consumer Expectations … … what do your families expect?

34. Consumer Expectations… …what do your families expect? LOOK!!

35. Service Recovery What is service recovery? • The process of creating a satisfying and agreeable response to a service delivery failure

36. Service Recovery … “What we teach staff to say and do when a bad thing happens”

37. The basic principles of service recovery • Communicate • Show genuine concern and compassion • Check customer satisfaction • Coach the team • Compensate Source: Retzke, Ronald E, Ph.D., Service Recovery in the Healthcare Setting, distributed by Pendulum, LLC, 2010

38. The Customer perceives his concerns are being ignored The Customer is embarrassed at doing (or saying) something incorrectly No one is available to help the Customer resolve an issue The Customer experiences employees with “not my job” attitude Someone in the organization promises something that was not delivered Someone in the organization is indifferent, rude, or discourteous The Customer is told she has no right to be angry The Customer feels someone in the organization has an unpleasant attitude toward her The Customer’s integrity or honesty is questioned Someone in the organization argues with the Customer The Top Ten Reasons Customers Get Upset Source: Retzke, Ronald E, Ph.D., Service Recovery in the Healthcare Setting, distributed by Pendulum, LLC, 2010

39. Handling Angry CustomersMaking it easy for the team … processes Convert a desired behavior into an easy to use system Orientation and ongoing training—written guidelines Teach the Use of Supportive Language I need or we need … NOT … You must or you have to I can help you better if … NOT … I can’t help you if Here’s what I understand … NOT … You’re wrong Tell me what happened … NOT … You need to tell dietary Let’s see what we can do … NOT … That’s not my department Teach How to Transfer the Anger (“conditional apology”) “I would be upset too … that is not acceptable” “We will do the following …” Get Personal Use their name; give them your name, business cards

40. Anger Management Framework Level 5: Inconsolable Level 4: Upset Level 3: Frustrated Level 2: Irritated Level 1: Concerned Take the “Service Recovery Temperature” Source: Retzke, Ronald E, Ph.D., Service Recovery in the Healthcare Setting, distributed by Pendulum, LLC, 2010

41. www.sorryworks.net Developing med-mal strategy: “I’m sorry” Doctors’ apologies for medical mistakes may not be a cure-all for litigation, but explaining unforeseen outcomes and making early settlement offers have proven effective, say lawyers who have participated in the process in the last decade. The concept is called “full disclosure/early offer,” and it is spreading.

42. An Expectations Management Concept … The Relationship Account

43. The Question: “Recently I read an article that mentioned relationship accounts as essential to reducing risk and minimizing malpractice litigation. What is a relationship account and how can it help our practice reduce risk?”

44. The Answer! >>> Think of the relationship between you and your residents as a bank account with deposits and withdrawals. With a friend or colleague, a compliment or a simple “thank you” could serve as a deposit, whereas lying to the person or making a rude comment would draw from the relationship>>> The act of providing good care alone forces you to make regular withdrawals from your relationship accounts with residents. For example, some procedures and examinations can be painful or embarrassing. Sometimes you have to give bad news or tell other adults what to do, which may diminish the positive feelings residents feel towards you

45. Communication skillsprovide the most high-leverage deposits you can make into a relationship account. You can make these deposits frequently, before any big withdrawals, and with little extra time. Consider these tips to keep your communication skills at the highest level:>>>Really listen … Active Listening>>>Know your residents>>>Ask for their input, ideas, comments

46. Facility Program Idea When we call families it is usually to inform them of something bad. Try this:Break out your resident census by names and distribute to your staff (managers, line staff, etc.) with responsible parties and phone numbers, or even email addresses. Build in time every day for staff to make one call to a family member to say: >>> I saw your mom today in the beauty shop, she looked great! Bye-bye!>>> Your dad just finished a therapy session, and he did really well! Bye-bye!>>> Your grandmother went to the mall today and … relay a funny story.

47. Expectations ManagementClosing Comments and Recommendations

48. Create a Maze of “Claim Barriers” Elopement Drills Record Activity Attendance Photos? Service Recovery Program Visitor Logs Risk Manager on Staff Compliments in the Record Windows Restricted Disease Disclosure Doc-Admission Pack Expectations Management Protocol Formal Fall Program Sex Offender Checks Marketing Brochures Reviewed Policy on How to Apologize for Mistakes Private Duty Persons Background Checks

49. Perceptions/Expectations

50. What did you learn? TOP THREE IDEAS