Standard of Care: How Has the Caring Sector and Its Cases Changed?

Cyndy Minnery, an expert in long term care, speaks about the legal cases she sees and what changes could be made to spare those who may be victims from a lack of adherence to a quality standard of care.

What are common cases you are instructed on as an expert witness?

I usually work as a standard of care expert in Skilled Nursing, Rehab, Transitional Care or Assisted Living Facilities relating to falls, bedsores, elopements and aspiration cases, although I’ve had the occasional case involving scabies or other off the beaten path scenarios.

What process do you undergo when first instructed on a case? Can you share with Lawyer Monthly your step by step process?

I start with a conflict check to confirm there are no conflicts.   Secondly, l like to hear an overview of the case to make sure it is within my scope of practice and whether it is a good fit for my expertise.  Once the attorney retains me, I like to start by reading the complaint so I can understand what occurred from the Plaintiff’s point of view.  Next, I like to review the evidence – usually a medical record -, in order to gain as much insight as possible about the events.  I read all depositions to gain an understanding of how the different players in the case see the events that unfolded. Then I create a timeline documenting pertinent events. Throughout my review, I am looking at resident care from a nursing point of view to see if there have been any breaches in the standard of care.   After a thorough review of all of the records, I come up with my opinions and the basis for each opinion.  The attorney who retained me usually wants to hear my opinions prior to moving forward.  If I’m asked to write an expert report, I start with an overview of the events from the timeline and try to paint a picture with the evidence so there is a clear understanding of the basis for my opinions. The last thing I do in the report is to write my opinions along with the basis for each opinion to support appropriate resident care was provided or identify a breach in the standard of care.  I draw from my experience to support an opinion, but I primarily use the evidence from the case, which is usually the medical record or depositions as the basis for my opinions.

One of the biggest issues that does not change over time is appropriate staffing.

You were previously worked as a Director of Quality Compliance in Skilled Nursing and Home Health Care; what compliance issues do you commonly see rise?

It’s interesting that the compliance issues 30 years ago are very similar to the issues I see today, which have to do with staffing according to resident needs, properly assessing the resident to determine appropriate placement, observation of the resident for change of condition and providing care that is resident focused to meet the needs of that specific resident instead of using a generic treatment plan.  One of the biggest issues that does not change over time is appropriate staffing.  As the acuity of the resident changes and the needs are more time intensive, the staffing pattern should be appropriate to accommodate the needs.

Even residents with dementia have rights and the ability to participate in some decisions.

Do you think the resident’s involvement with their treatment plans has changed over the years?

Yes, residents are more aware of their rights.  The medical community needs to catch up with this new awareness and respect a resident’s right to make choices.   Physicians frequently want to order medication or a test because they think it’s in the best interest of their resident, however, the resident may not agree.  Many people want to be involved in decisions regarding their health care and physicians need to spend time with the resident to educate them on different treatment options, side effects, and prognosis and allow the resident to make the decision that is best for them, even if the physician disagrees with that decision.

Even residents with dementia have rights and the ability to participate in some decisions.  For instance, a 95-year-old diabetic resident may want to forego a diabetic diet and eat a piece of pie now and then.  A resident with cancer may want to pass on chemotherapy, even if there is a potential for a cure.  All of these decisions are personal decisions and the resident should be respected and his or her opinions should be worked into a plan of treatment.  At the end of the day, residents have to right to refuse care and this is a factor that has to be considered in legal cases.

Caregivers notice subtle changes sometimes long before they become significant medical problems, but they get so busy they often times forget to tell someone about an observation that may or may not be significant.

Do you think there need to be tighter assessments to ensure standards of care are met?

I do think tighter assessments need to be made to ensure standards of care are met.  The starting point of care is to observe the whole resident from head to toe with a comprehensive assessment.  Once a good assessment is done and care needs are identified, caregivers need to understand what outcomes of care the resident wants or expects.  The plan of care should include the resident’s desires when developing the interventions.  Next caregivers should observe the resident for changes from the baseline.  I am talking about non-medical observations of the entire person, such as: redness on pressure points indicating the beginning of skin breakdown, coughing frequently during meals, difficulty swallowing, changes in eating patterns, change in level of alertness, new or worsening pain, swelling of the feet, no bowel movement for four days, etc.

I think the best experts are the people with a lot of hands-on experience who remain active in their field.

Caregivers notice subtle changes sometimes long before they become significant medical problems, but they get so busy they often times forget to tell someone about an observation that may or may not be significant. I find when asking the caregiver, they know more about the resident than anyone about small subtle changes.  For instance, I may ask, “How is Mrs Smith today?” and get a response back of “Oh she’s fine maybe just a little tired this morning.”  But when I dig into more specifics and ask “How much did she eat at breakfast?”, or “Did her skin have any redness this morning?”, or “When was her last bowel movement? Is she more confused today than normal?”, I find that the caregiver can go into great detail and give me lots of information.   Caregivers need to be taught the changes they should notice and have a designated person to communicate with so necessary medical treatment can be accessed quickly.

What do you think makes a good expert witness?

I think the best experts are the people with a lot of hands-on experience who remain active in their field.  Many times I see an expert who is an academic, but has not practiced in years, and cannot relate to current practice.  A good expert is impartial, focuses on the important aspects of the case and looks at the evidence thoroughly.  The expert has to have the ability to write and articulate their opinions in a manner that is concise and easily understood to the layperson.

Cyndy Minnery RN, BSN

RCFE Management Group

cyndy@minnery.net

760 454-9893

www.daybreakretirementvilla.com

Cyndy Minnery has been a Nurse for 38 years and started working in Intensive Care and Acute Care Hospitals in 1980; she then moved into Skilled Nursing Facilities where she became a Licensed Nursing Home Administrator in 1986.  She also worked in Home Health Care for a short time, but the majority of her professional career has been working in the Long-Term Care setting.  Between 2008 to the present Cyndy owned and operated 4 Residential Care Facilities for the Elderly.  Cyndy started work as an Expert in Long Term Care in 2012 and has since been retained on over 175 cases and working 50/50 between plaintiff and defense.