Ethics, Law, and Aging Review : Vol. 7: Liability Issues and Risk Management in Caring for Older Persons.

192 Pages·2001·10.007 MB·English

by  Kapp, Marshall B.

Ethics, Law, and
Aging Review
Volume 7
Marshall B. Kapp, JD, MPH, FCLM, was educated at Johns Hopkins Univer-
sity (B.A.), George Washington University (J.D. With Honors), and Harvard Uni-
versity (M.P.H.). Since August 1980, he has been a faculty member in the
School of Medicine at Wright State University, Dayton, Ohio, where he is the
Frederick A. White Distinguished Service Professor in the Departments of
Community Health and Psychiatry and Director of the WSU Office of Geri-
atric Medicine and Gerontology. He holds an adjunct faculty appointment at
the University of Dayton School of Law. In addition to being admitted to prac-
tice law in a number of state and federal courts, he is also licensed as a Nurs-
ing Home Administrator in the District of Columbia. He is the author of a
substantial number of published books, articles, and reviews.
Ethics, Law, and
Aging Review
Volume 7
Liability Issues and Risk Management
in Caring for Older Persons
Marshall B. Kapp, JD, MPH, Editor
Springer Publishing Company
Volume 1-5 of Ethics, Law, and Aging Review, appeared as a biannual journal
entitled the Journal of Ethics, Law, and Aging. These publications are available
from the publisher.
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ETHICS, LAW, AND AGING REVIEW, is indexed/abstracted in Ageline,
Cumulative Index to Nursing & Allied Health Literature, New Literature in
Bioethics, Mental Health Abstracts, PsychlNFO & PsychSCAN, Social Plan-
ning/Policy & Development Abstracts, Social Work Abstracts, Sociological
Abstracts.
Printed in the United States of America by Sheridan Books.
Contents
Contributors vii
Acknowledgments ix
Introduction xi
Chapter 1. Malpractice Liability Issues Associated With
Caring for Older Persons 1
Ronald W. Scott
Chapter 2. Risk Management, Health Care, and the Geriatric
Patient Population 11
Michael J. Bass
Chapter 3. Medico-Legal Aspects of Hospital Siderail Use 25
Elizabeth A. Capezuti and Julie A. Braun
Chapter 4. Negotiated Risk Agreements:
Opportunity or Exploitation? 59
Keren Brown Wilson, Kenneth L. Burgess, and
Mauro Hernandez
Chapter 5. A Perfect Storm of Unlimited Risks for Florida
Nursing Home Providers 81
LuMarie Polivka-West, Howard Tuch, and Karen Goldsmith
Chapter 6. Risk Management and Quality-of-Care Concerns
in Long-Term Care 101
Andrew Weinberg
Chapter 7. Nursing Home Litigation: "The Good, the Bad
and the Ugly" 117
Lawrence A. Frolik
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vi Contents
Chapter 8. Quality of Care and Quality of Life in Nursing Facilities:
What's Regulation Got to Do With It? 133
Marshall B. Kapp
Book Reviews 161
Bibliography: Medical Errors 165
Books Received 168
Index 171
Contributors
MichaelJ. Bass is an MD-JD candidate at Southern Illinois University. He received
his BS from the University of Kentucky. During the summer of 2000, he was an
intern at BJC Health System's risk management department in St. Louis, MO. He
would like to recognize Drs. Susan and Alberto Vidal for their undying love and
support.
Julie A. Braun, JD, LLM, is the editor of the Elder Law Portfolio Series (Aspen
Law & Business), co-editor of a nursing home litigation manual (Aspen), editor-
in-chief of the monthly Pharmaceutical and Medical Device Law Bulletin, co-chair
of the American Bar Association Medicine and Law Committee, and former Vice-
Chair of the ABA Seniors' Law Committee. She and co-author Elizabeth Capezuti
are members of the Food and Drug Administration's hospital-bed work safety
group and are co-investigators in a study exploring the medical and legal liability
issues surrounding hospital-bed siderail use.
Kenneth L. Burgess, JD, specializes in health care law as a member of the
Hooper, Lundy & Bookman law firm in San Francisco. He serves as Legal Coun-
sel to the Assisted Living Federation of America.
Elizabeth A. Capezuti, RN, PhD, CS, FAAN, is Associate Professor and Inde-
pendence Foundation/Wesley Woods Chair in Gerontological Nursing Scholarship
at the Nell Hodgson School of Nursing, Emory University. She is also Associate
Director for Nursing Science at the Emory Center for Health and Aging.
Lawrence A. Frolik, JD, is Professor at the University of Pittsburgh School of
Law. He has written, lectured, and consulted nationally and internationally regard-
ing various aspects of elder law.
Karen Goldsmith, JD, is a shareholder in the law firm of Goldsmith & Grout,
P.A., Winter Park, FL. She received her law degree cum laude from the University
of Florida in 1978, where she was designated Order of the Coif. She has practiced
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viii Liability Issues and Risk Management
primarily in the areas of health care, small business, and administrative law, and
provides legal counsel to the Florida Health Care Association. Ms. Goldsmith
serves as Chair of the American Health Care Association's Legal Subcommittee.
Mauro Hernandez, BS, is a doctoral student at the University of California, San
Francisco. He formerly served as Director of Public Policy for Assisted Living
Concepts, Portland, Oregon.
LuMarie Polivka-West, MSP (Urban & Regional Planning), is Director of Pol-
icy & Quality Assurance with the Florida Health Care Association and an adjunct
faculty member in Urban & Regional Planning at Florida State University. She is
the former Director of Licensure and Certification in Florida and former Medic-
aid Program Director in that state.
Ronald W. Scott, JD, MSBA, MSPT, PT, OCS, is Director of the Department of
Physical Therapy at Lebanon Valley College. He has extensive military and civil-
ian experience in advising and representing health care providers, and has written
and taught extensively about a variety of risk management topics.
Howard Tuch, MD, is Director of Pain Management and Palliative Care Ser-
vices for Genesis ElderCare. He is board certified in internal medicine and com-
pleted a fellowship in geriatric medicine at Johns Hopkins University School of
Medicine. Dr. Tuch serves as a clinical consultant to the Florida Health Care Asso-
ciation and has reviewed numerous nursing home malpractice cases in Florida.
Andrew Weinberg, MD, FACP, is Associate Professor of Medicine and Medical
Director for Long-Term Care at the Wesley Woods Center, Emory University. He
has written, lectured, and consulted extensively in the area of nursing home liti-
gation and risk management.
Keren Brown Wilson, PhD, is president of the Jessie F. Richardson Foundation,
a non-profit organization in Portland, Oregon dedicated to research, education, and
training in housing and long-term care. She is the founder and former Chief Exec-
utive Officer of Assisted Living Concepts in Portland, as well as Chair of the
Assisted Living Federation of America.
Acknowledgments
Marshall B. Kapp, Quality of Care and Quality of Life in Nursing Facilities: What's
Regulation Got to Do With It? originally appeared in 31 McGeorge Law Review
801 (2000) and is reprinted with permission of the McGeorge Law Review. All
rights reserved.
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