4. Liability Practices And Control, Driving Policy, Accident And Incident Investigation And Analysis.

Advertising liability

        In a difficult competitive environment, organizations are often under pressure to differentiate themselves from others. Unfortunately, differentiation by overstating capabilities or quality of services can result in significantly higher levels of liability. Watch for overstating promises and guarantees that generate unrealistic client expectations, have legal counsel review all marketing material.

Checklist of liability practices and controls

        With regard to liability, regardless of the size of the organization, there are recommended best practices that need to be put in place and followed:

• Quality assurance requirements and measurements conforming to state licensing requirements, certifications and accepted professional standards and practices;
• Policy and procedure manual for daily operations, and for handling complaints and incidents;
• Management of confidential employee and client information;
• Infection control policy, including TB screening;
• Written job descriptions that clearly define duties;
• Criminal background and sex offender registry checks;
• Validation of personal auto insurance and checks on driving records if employees operate their own vehicles;
• Employee selection that includes a competency assessment, and verification of references and credentials;
• Procedures for documenting and handling complaints from client s and client family members;
• Requirement for and use of written service and care plans for each client;
• Continuing education covering client rights, compliance, infection control and ethics.

DRIVING POLICY

        In any situation where someone drives on behalf of a company there is an exposure for that company. Regardless of whose car they are driving, when and in some cases, for what purpose. Over the past several years, companies are facing charges of vicarious liability or “negligent entrustment” when the employed driver causes a collision and the employer did nothing to verify that the employee was qualified to drive.

        Some Home Healthcare agencies do not compensate home care workers during transit between client appointments. Even where the vehicle belongs to the employee and they are driving without compensation, the employer may still be liable for their actions. In addition to potential suits for vicarious liability, there may also be an exposure to workers compensation claims should the employee be involved in a collision. Specific rules regarding what does or does not qualify as being in the course and scope of employment vary by individual state, but the majority will allow coverage if traveling directly from one appointment to the next.

        If a company requires any driving for business purposes, it needs to have a written driving policy. This is particularly important when the employee transports patients to appointments, shopping or other functions, and even where they run errands on behalf of a client or the company. The policy may not need to be extensive, but needs to clearly cover company expectations.

• Anyone driving a vehicle on company business must obtain authorization to do so.
• When an employee drives a vehicle on company business, the company has a right to check motor vehicle records. By signing the acknowledgement the employee authorized the employer to check.
• MVRs will be checked at least annually. This is a low cost investment that can pay huge dividends in preventing the employment of someone with a history of dangerous or reckless driving.
• State unacceptable driving records or when a review of privileges will be conducted (revoked or restricted, three tickets in three years, DUI/OWI convictions etc.)
• Insurance that the employee carries on their own vehicle will act as primary coverage for any collision. Require proof of insurance coverage if the employee will be driving his or her own vehicle. Check this every 6 months. Require that it at least meets minimal state requirements for coverage.
• Make sure your company carries Non-Owned auto coverage. This coverage applies over personal coverage and this additional coverage is often needed when the at-fault driver is on company business when the collision occurred. If they will be driving clients, consider requiring higher limits, or require they drive the client’s auto and ensure it has proper coverage.
• Consider inspecting the employee’s automobile to ensure it is safe. Again, the importance of doing so increases significantly when transporting patients.

Accident And Incident Investigation And Analysis

        As the saying goes “fool me once, shame on you, fool me twice, shame on me.” While we do everything reasonable to prevent incidents and injuries, they can happen, and we have to be prepared to minimize the extent of the loss. If we do not learn from the occurrence, or patterns of loss, and use lessons learned to prevent future problems, there is a likelihood that we will repeat the loss, and subsequent events often end up being worse than the initial event. In the case of liability claims, a pattern of failing to identify and correct ongoing problems can play a key role in the extent of a court award or judgment.

        Incident reporting – Regardless of the type of event – client injury, employee injury or vehicle collision, the accident or incident investigation and analysis needs to incorporate the following:

        1. Demographics + Analysis = Corrective Action

• Demographics. Who was involved and were there witnesses – obtain names and contact information What happened – Clear, concise and non-judgmental. Just the facts. When did it occur? Where did it occur – be specific
• Analysis. Analysis is the “why” of the equation. This is also the most difficult part and why many accident or incident analysis efforts are ineffective, and sometimes ignored.The most frequent weaknesses of analysis efforts are.

        2. A focus on finding blame. In many organizations, analysis begins with the premise that someone did something stupid and they need to be punished or receive remedial training. The focus needs to be on accepting that there was an underlying management control deficiency responsible. The deficiency may very well be that the company hired the wrong person or that the employee was inadequately trained, or there was an undetected hazard, but ultimately, everything the company or its employees are exposed to is under the control of the company.

        3. Not to extend the effort. Accident or incident reports with conclusions such as “unavoidable” “employee was stupid” “should have been more careful” “should have known better” are lazy and unproductive. These types of conclusions don’t lead to corrective action, but may result in finger pointing. Getting to the heart of what truly caused the loss to occur can be a difficult process, but truly eliminating a source of injury and/or dollar loss is worth the investment. An often-unrecognized benefit of conducting detailed analysis is that while solving one problem, it is often possible to uncover a fundamental management control deficiency that may be responsible for the occurrence of other accidents or the existence of potential sources of injury or property damage.

        4. Why do companies fail to do thorough analysis? Often, when it is time to complete the paperwork, the initial damage is done and people want to move on to other priorities. Responsibility for the analysis may be dropped on someone without authority for completion. If there is a history of that person’s recommendations being ignored, it is a guarantee of an ineffective investigation.

        5. How do you approach the analysis? Companies should have protocols as to which incidents and accidents are investigated and the extent of the investigation. In the healthcare arena, companies often establish incident review boards, peer groups or committees that may be accountable for investigating any serious incident which has occurred, putting the organization at risk for substantial financial loss. This may include any client incident involving an injury, employee injuries requiring time away from work or collisions where injury and/or property damage occurred. In other organizations, all incidents may first be reviewed by an individual, such as a risk manager, human resources professional or the owner. Regardless of who investigates the incident, the basic process should consider the following.

        6. People – Without looking to place blame, consider factors related to the person or persons involved;

        For a client – were there characteristics about the client or something they did that contributed to the incident? Did we already know about this? If not, should we have known about this? Did we take proper steps to control against the problem? Does this need to be included in the patient’s care plan?

        For an injured employee – were they qualified to do the work? Should they have been doing the job based on the ability to functionally perform the task safely? Did they understand what they needed to do? Was this particular task something not normally performed?

        For an “at fault” collision – Could they have taken action to avoid the collision? Were they legally qualified to drive? Did they understand company policies? Have they acknowledged the company driver policy?

        7. Equipment – Equipment refers to the things that were involved in the incident, such as transfer equipment, beds and vehicles;

        Was the equipment used appropriate for the task? For a client transfer device, was it designed for the client?

        Was it used for the purpose intended and was it used correctly?

        Did it work as designed? Was the equipment in good working condition?

        8. Materials – Materials are elements introduced into the environment. “Materials” in the world of home healthcare include clients and everything to do with them. Was there something about the client that increased the risk or contributed to the incident? Did they do something unexpected? Should we have known about it? Was there a change in condition that we did not identify?

        Where there chemicals, drugs or other substances involved? Did we understand the hazards and provide sufficient protective measures and training?

        Did materials or people traveling in a vehicle involved in a collision contribute to the crash?

        9. Environment – Basically, the world we live and work in did weather have a role to play? Could we have protected against or prevented the loss by taking appropriate measures?

        Were there conditions in or around the home that caused or contributed to the incident? Were people or animals involved?

        10. Corrective Action. After identifying the causal factors, take a look at how they influenced the incident and determine what changes could be taken or implemented to prevent a similar situation from occurring in the future. As noted in “General Principals of Risk Management” above, solutions need to be prioritized as:

• Transfer or eliminate the risk;
• Engineer the problem out – add or replace transfer equipment, add a handrail;
• Take administrative action – training, new procedures

        11. Follow-up. Clear responsibility needs to be assigned for making corrections, by a specified date, and reporting when completed.

RESOURCES

        Patient Care Ergonomics Resource Guide: Safe Patient Handling & Movement Department of Veterans Affairs. One of several references to studies and research conducted over the years into patient handling. Provides guidance on patient transfer equipment, handling algorithms. Available at http://www.va.gov/

        CDC/NIOSH – Safe Patient Handling. Includes NIOSH Hazard Review: Occupational Hazards in Home Healthcare http://www.cdc.gov/niosh/topics/safepatient/

        American Nurses Association (ANA) Needle Safety http://www.needlestick.org

        National Institute of Occupational Safety and Health (NIOSH) Stop Sticks campaign and sharps injury prevention protocols. www.cdc.gov

        National Institute of Occupational Safety and Health (NIOSH) State of the Sector – Chemicals and Other Hazardous Exposures www.cdc.gov

        CDC – Healthcare-Associated Infections (HAIs) http://www.cdc.gov/hai/

        OSHA Standards Related to Healthcare http://www.Osha.gov/SLTC/healthcarefacilities/standards.html

        CDC – Home Healthcare Workers, How to Prevent Violence on the Job http://www.cec.go/niosh/docs2012-118/

        The International Council of Nurses – Abuse and Violence Against Nursing Personnel – http://www.icn.ch/images/storeis/documents/publications/position_statements/CO1_Abuse_Violence_Nsg_Personnel.pdf

Society for Human Resource Management (SHRM) Annual Membership http://www.shrm.org

        World At Work Compensation education, resources, benefits and work-life training www.worldatwork.org  

        American Geriatriacs Society Falls prevention in older adults http://americangeriatrics.org/health_care_professionals/clinical_practice/clinical_guidelines_recommendations/2010/

        CMS Outcome and Assessment Information Set (OASIS) http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/OASIS/index.html