Factors impacting litigation

A number of factors have converged in the aging services industry to create an adverse litigation climate and persistent negative image, including:

Plaintiff attorney specialization. Nationwide educational seminars that capitalize on a growing distrust of aging services providers are designed for legal practitioners to share information and strategies while honing successful litigation tactics. As a result, attorneys are bringing a high level of expertise in claim prosecution and negotiations.
A perception that profits are more important than residents. By highlighting an organization's profit motivation, staffing deficiencies or quality challenges in litigation, plaintiff attorneys seek to influence jurors by focusing on the conduct of the organization, rather than the circumstances surrounding the resident's injury. And in some cases, the strategy results in excessive damage awards.
Aggressive litigation tactics. Using the "Reptile Theory" in litigation, plaintiff attorneys appeal to jurors' basic survival instinct, persuading them to make decisions based upon fear rather than logic and reason. When employed effectively, the strategy motivates jurors to protect individuals from harm, often leading to high damage awards against organizations perceived to be a danger to residents and the greater community.
Negative media coverage. Aging services organizations are often in the headlines for lawsuits and negative events. In the absence of an effective crisis management strategy, facilities lose the ability to control public perception, further eroding their credibility and reputation.

Risk management in aging services

Several principles of risk management can be used to help aging services providers mitigate potential risk exposures:

Delineate expectations. Failure to understand and manage resident/family expectations is a common source of conflict and potential litigation. To help ensure resident placements are suitable and care expectations are mutually agreed upon, thoroughly delineate service capabilities and limitations for prospective residents and families.
Prioritize fall-related risks. Resident falls remain a significant challenge confronting aging services communities. The sheer volume of falls underscores the need to focus on preventing resident falls, mitigating fall-related injuries, and managing the cost of claims.
Foster resident and family trust. A trusting relationship requires ongoing communication and a commitment to transparency in every interaction — not solely following untoward events. At the outset of care, delineate facility capabilities and realistic service goals for residents and families, and reinforce progress and expectations through ongoing discussions.
Address staff turnover. An unstable workforce often results in recurrent staff turnover and can undermine resident/family trust. Aging services organizations should focus on hiring the appropriate mix of staff members and provide them with ample orientation and training in order to avoid a chronic cycle of relationship building and the resulting dissatisfaction.
Train leaders. Creative and engaged leaders are transforming institutional facilities of yesteryear into progressive organizations of choice. Training and development opportunities should focus on quality improvement, resident satisfaction management, relationship-building skills, systems thinking, and fiscal and human resources management.
Empower staff. The provision of safe, high-quality resident care requires knowledgeable, empowered, and well-integrated staff. Proper onboarding and orientation that emphasizes interactive, long-term learning can create a solid foundation for employee relations and help ensure a more loyal, dedicated, and stable workforce.

At a time of market uncertainty, it is critical for aging services organizations to align with an insurance partner that has demonstrated stability under challenging market conditions. Although lower-cost insurance companies or risk retention group models may be tempting, weak, or substandard coverage terms come at a risk. With the right insurer, aging services organizations can better address coverage needs, mitigate risk exposures, and strengthen their defense posture in the event of litigation.

Special Reports /

Aging services: An industry under scrutiny

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