Legal Implications in Long-Term Care

By Sacks, Debra Jd | Care Management Journals, Summer 1999 | Go to article overview

Legal Implications in Long-Term Care


Sacks, Debra Jd, Care Management Journals


LEGAL IMPLICATIONS IN LONG-TERM CARE Janine Fiesta, JD, BSN Albany, NY: Delmar Publishers, 1997, 234 pp., $28.95 (Softcover)

This book is a "once over lightly" covering the multitude of legal issues involved in the long-term-care industry. By taking this approach, Ms. Fiesta reaches out to a wide and diverse audience. While the nonlegal professional is exposed to the issues without being overwhelmed by their complexity, the legal scholar will find this book a starting point for conducting more indepth research by using the cases and legal citations given.

The focus is on long-term care within the institutional setting, particularly in nursing homes. Homecare and alternative residential facilities are not addressed. This general overview is comprehensive and accurately explains legal concepts through the use of case examples. These "real cases" bring the issues to life by showing how everyday activities can lead to injury and litigation. Unfortunately, there is a disturbing lack of discussion of surrogate decision-making issues such as legal guardianship, powers of attorney, and representative payeeship. These legal mechanisms determine who is the legal decision maker and fiduciary for the resident. The legal ramifications of these appointments in the longterm-care facility have direct bearing on such things as accessing resident's funds for payment of care, and consent to care and treatment.

BOOK STRUCTURE

The book covers a host of liability concerns: every aspect of the longterm-care industry, from resident care to corporate business aspects. The contents of this book include individual liability and licensure, institutional liability and licensure, criminal abuse and neglect, ethical dilemmas, personnel issues, risk management, quality assurance, and documentation. Each chapter deals with pertinent points of law through the use of legal precedent. For example, in chapter 2 each element of a malpractice or negligence lawsuit (legal duty, breach of duty, causation, and damages) is discussed and exemplified through the use of real cases. This technique helps the reader discern what aspects of facility life and resident care are most vulnerable to lawsuits and the judicial interpretation that follows.

DISCUSSION

The following is a brief discussion of the book's contents. After the introduction (chapter 1), chapters 2 and 3 consider individual liability and licensure, respectively. The chapters provide a picture of the basic negligence lawsuit and how it applies to individual liability, in particular the facility doctor and nurses. Through case studies the author explores both the legal duty of care between the facility physician and its residents and also the legal relationship of the facility and its physician to the general public. Wisely, the issue of legal responsibility between physicians and nurses and its application to a legal standard of care is addressed. (Having worked as a nurse in longterm-care facilities, I know it is often hard to attribute blame for harm that occurs.) The sufficiency of nursing observation and documentation and using the nurse as an expert witness is also covered.

In exploring breach of duty of care the author reviews the most frequent causes of resident injury and malpractice suits: falls, improper use of restraints, and decubiti care. The discussion in each of these areas is directed to nursing professionals and is full of helpful information regarding nursing assessment, monitoring and communication issues and their implications for liability. The important issue of resident safety versus resident independence in this context is also well addressed.

Chapter 3 explains the licensure and certification process and the difference between loss and suspension of a professional license. Unprofessional conduct is exemplified through a case study, and the legal mechanism of due process is introduced in a discussion of a professional disciplinary action and court review. …

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