This column is not to be substituted for legal advice. The writer, JANET K. FELDKAMP, practices in various aspects of health care, including long-term care survey and certification, certificate of need, health care acquisitions, physician and nurse practice, managed care and nursing related issues, and fraud and abuse. She is affiliated with Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio.
Long-term care facilities are often faced with the dilemma of how to respond to residents and families who are “difficult.” This category includes people who express themselves in a hostile manner, treat staff rudely, or even harass or physically abuse staff.
Although dealing with difficult residents and families is an inevitable task for any nursing facility, there are several legal implications related to how a facility handles the situation. One route into the legal system for facilities is via a suit brought by staff members who are the targets of angry or abusive residents. Three categories of cases predominate. They are, with examples of each as follows:
▸Resident Physical Abuse of Staff: Sheri Gould v. American Family Mutual. An Alzheimer's resident hit and injured a nurse on a dementia unit of a nursing facility. At the time of the incident, the resident was wandering into another resident's room. When the nurse attempted to redirect the man, he responded by hitting the nurse with enough force to knock her to the floor and injure her.
The nurse brought a negligence suit against the resident and his insurance company. Under common law, a mentally disabled person is responsible for his or her own negligence. Using this as a standard, the lower court decided that the Alzheimer's resident was liable for his actions.
On appeal, the Wisconsin Supreme Court overturned the lower court's decision, citing reasons of public policy. The court ruled that forcing residents to be liable for injuries they may cause to health care providers would cost society too much money. The court overturned the lower court's decision even though “technically” finding the resident negligent in what the law historically required.
▸Resident Racial Harassment of Staff: James and Ella Childs v. Evergreen Butte Health and Rehabilitation Center. In this case, two certified nurse assistants, who were a married couple, sued a nursing home for violation of state antidiscrimination laws. The case was heard by the Montana Department of Labor and Industry.
Both James and Ella Childs were employed by a temporary medical staffing agency. The two CNAs alleged that they faced racial discrimination by various residents at the nursing home. The administrative law judge noted that the residents' behavior was “specific, explicitly racial, directed toward James Childs as a person, and extremely hateful.”
On one occasion, a resident used a racial slur in reference to James Childs. The nursing home reprimanded the resident, removed the staff member from the resident's immediate area, confined the resident to his room, instructed the resident of the nursing home's expectations about how the resident should treat staff, and trained the staff in racial harassment. The judge described the nursing home's actions as reasonable first steps after an incident of racially motivated harassment of staff by a resident.
However, the judge didn't agree with how the nursing home handled an incident involving Ella Childs. One resident requested a different nurse because Childs was African American. Rather than addressing the issue with the resident, the charge nurse merely changed Ella Child's assignment.
In response, the administrative law judge ordered the nursing home to pay Ella Childs $4,500 in liquidated damages and post the antiharassment policies prominently in employee areas. The judge required the nursing home to adopt a policy defining the steps it would take when residents harass staff.
The judge suggested that reasonable steps would include counseling the resident, removing the resident from the staff member's presence, adding consequences for repeated harassment, and assessing whether the resident's incompetence has progressed to the point at which shielding the staff member is the only appropriate option.
▸Resident Sexual Harassment of Staff: Ligensa v. Genesis Health Ventures of Mass., Inc. A respiratory therapist working in a nursing home sued her employer for sexual harassment by a resident. He had a history of sexually inappropriate behavior, and the nursing home had instituted a care plan and professional counseling to address it.
Eventually, however, the respiratory therapist responded to the resident's habit of looking up her shirt while she was tending to his ventilator by hitting the resident. The nursing home fired the therapist who later sued the facility for harassment under both federal and state laws. The court found for the nursing home because it was not proven that the resident was harassing her with the facility's knowledge.
In addition to the Civil Rights action, the facility would be at risk of being faced with survey citations and abuse investigations from multiple regulatory agencies for an employee's failure to follow residents' rights.
Federal law under Title VII of the Civil Rights Act of 1964 prohibits harassment in the work setting.
Why So Complex?
It seems there should be a simple solution to dealing with difficult residents and staff in nursing homes, but laws and regulations complicate the issue. Under Medicare regulations, a nursing home may transfer or discharge a resident only if the facility cannot meet the resident's health care needs, the resident no longer needs the nursing home's services, the resident endangers the safety or health of others, the resident doesn't pay, or the facility no longer exists. The intersection of resident-rights laws, discharge and transfer laws, certification statutes, licensure requirements, and employer laws frequently complicates management of facilities.
Add to that laws and regulations governing workplaces. Although the nursing home is the resident's home, it is also a place where the employer is responsible, by law, to provide a harassment-free workplace. The nursing home must maintain a certain order and routine to meet the standards of care set by federal and state government.
Finally, families can sometimes play a legal wild card. Even when a nursing home provides appropriate care, the interventions may not be aligned with the family's expectations. This mismatch of expectations frequently causes friction among the staff, the resident, and the family.
Family adjustments to a person entering a nursing home, and associated guilt issues, are enough to cause tension, but some dynamics can make the situation even worse. Factors at play may include a family members' history of poor coping behavior, high stress levels, substance abuse, and mental illness.
Heading Off Problems
Although the court cases above involve residents harassing staff, a nursing home may also face legal consequences when a resident or a resident's family member sues. In cases involving difficult residents and families, courts have typically focused on the particular nursing home's policies and procedures. Besides having those items in order, a facility can take many other steps to make it more likely that its actions would be deemed appropriate by a court:
▸Post the policies on various forms of harassment in areas frequented by staff, provide the policies to temporary staff, and educate staff at least annually on such policies and procedures.
▸Address residents' and family members' behavior via proper care planning, which may involve behavioral interventions and monitoring.
▸Consider a “behavior contract” with a resident or a family member, in which the individual agrees in writing to abide by certain standards. Behavior contracts must be utilized only with residents and family members who can participate in setting the terms of the contract and appreciate their meaning. The contract also needs to comply with the state and federal requirements related to residents' rights.
▸Provide a proper medical assessment of the resident to rule out medical processes that may be the source of resident's hostile behavior, such as infection or chronic pain.
▸Intervene early by providing psychological and psychiatric care to residents when necessary.
▸Consider involving two staff members when providing care to residents with hostile or inappropriate behavior.
▸Educate the staff regarding diagnoses, such as dementia, that may cause hostile behavior by a resident; resident or family stress related to adjustment to the nursing home setting; and how to deal with inappropriate resident or family behavior.
▸Define clear limits with residents and family members whose behaviors are escalating. Consider communicating such limits to family members in writing.
▸Identify a specific staff member for family members to communicate with regularly. Creating a point person for family concerns streamlines efforts to address issues before they escalate to troublesome levels.
A facility's approach to dealing with difficult residents and families with preventative and proactive measures pays dividends in the long run.
© 2008 American Medical Directors Association. Published by Elsevier Inc. All rights reserved.