CNA Logo

Timely reporting of potential claims protects you and your business

Home healthcare providers have a duty to promptly and accurately report adverse events. Failure to do so can result in the loss of critical documentation, compromising legal defensibility, as illustrated in the following case histories:

Case 1: A Texas home care agency and its provider face a wrongful death suit after the family of a woman in their care alleges she was hurled against the dashboard of the vehicle in which she was being transported when it came to an abrupt stop. Although the provider had properly loaded and secured the client’s wheelchair into the wheelchair-accessible van, she had failed to fasten the client’s seatbelt. She also failed to report the incident, call 911 or seek treatment for the client, who later died of her injuries. The home care provider was indicted on criminal charges; trial is pending.

Case 2: A Virginia-based personal care provider failed to show for her midnight-to-6 a.m. shift caring for a 35-year-old man with cerebral palsy, diabetes and an amputated leg. The client was unable to walk, feed himself, or independently get into or out of bed. Two agency employees for the provider gave differing accounts to state investigators of what happened: one stated that a substitute aide was offered to but not accepted by the client, while the other denied that such an offer had been made. The aide who left at midnight stated that she was willing to stay with the client until a replacement was located, but the agency did not give its approval. A fire broke out in the client’s mobile home in the early morning, after the aide had left. The client’s body was found near the front door, suggesting that he had tried to escape the blaze. Soon after, the family filed a $50 million wrongful death suit. No documentation has come to light to explain or justify the care provider’s absence on the night in question, and it is unclear as to what measures, if any, were taken to secure a replacement.

These two scenarios demonstrate the critical importance of timely and thorough communication, documentation and incident reporting. Prompt reporting can both mitigate the consequences of an adverse occurrence and enhance the investigative and claim-management process in the event of litigation. For this reason, appropriate reporting procedures should be taught to every caregiver during orientation and reinforced through ongoing training and review sessions.

 

Reporting the Claim

A claim is defined as any demand for money, property or the enforcement of a right arising out of an event. Any notification of a claim or related legal communication should be reported to the insurer promptly, as should any incident that may evolve into a claim, such as a client injury, unexpected outcome, complaint or untoward event. CNA insureds can report claims via email at HPReports@cna.com or via fax at 800.446.8632.

The bolded items below should be included when the claim is reported, while the other information can be provided to the assigned claim professional:

  • Policy number
  • Date, time and location of accident
  • Description of accident
  • Injuries suffered and treatment rendered
  • Relevant contact information
  • Any letters or correspondence from an attorney
  • Circumstances leading to the incident
  • Incident report
  • Any related violations or citations
  • Any witnesses and their contact information
  • Any deviations from normal routines/practices/procedures
  • Any evidence of the client’s refusal to comply with the care/treatment plan
  • Any pre-existing or underlying medical issues/conditions contributing to the incident
  • Any changes in the client between the initial assessment/evaluation and the incident
  • Pertinent records from the hospital or primary physician

 

Working with Defense Attorneys

Once the incident or claim has been reported, relevant records must be gathered and protected. The following measures contribute critically to legal defense efforts:

  • Identify all parties involved in the incident and provide contact information, as well as any statements or incident reports prepared at the time of the incident.
  • Secure all videos and photographs, if any exist.
  • Sequester the chart from the home care provider to prevent late entries or additions.
  • Separate the insured’s care-related records from hospital and physician documents, as orders to release records apply only to those created by the insured.
  • Prevent alteration of the client care record. If late entries or clarifications are necessary, use a new page and clearly denote the date and time of writing, along with a clear reference to the date and time of the original note to which it refers. Remind staff and supervisors that even appropriately documented addenda to the record can create suspicion.

The claim professional may request additional information to assist in assessing and defending the potential claim, such as the following:

  • Initial assessment/evaluation of the client, especially in such key areas as fall risk, skin breakdown, chronic conditions, cognitive status, etc.
  • Pre-employment records for staff members involved in incidents, including allegations of physical or sexual abuse or other criminal/intentional acts.
  • Documentation of any contact with family members or others in regard to the incident.
  • Photographs or video footage of the incident, if such evidence exists.
  • A complete copy of the client’s care-related records, including all documentation prior and subsequent to
    the incident.
  • A copy of any hospital and/or physician records that were made available to the insured.
  • Contact information for providers who are familiar with the insured’s care of the client.

 

Following a claim or adverse event, be prepared to assemble and forward all relevant administrative, operational and/or clinical information. Keep in mind that ongoing, two-way communication and full cooperation with claim professionals (and legal counsel, if necessary) are key to a sound defense.

The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. CNA is a registered trademark of CNA Financial Corporation. Copyright ©2010 CNA. All rights reserved.