Incident Reports: Proceed With Caution

Incident injury report formLong term care facilities often question whether documentation of falls or other resident accidents at their facilities is necessary.  The answer really depends on the type of facility and the state of licensure.

Federal public health regulations require skilled nursing facilities to notify family and the responsible party if there is an accident involving the resident that requires physician intervention.  42 C.F.R. §483.10(11)(i)(A).  These regulations also require skilled nursing facilities and intermediate care facilities serving intellectually disabled individuals to report any instances of mistreatment, neglect or abuse, including injuries of an unknown source, to the proper agencies in accord with State law. 42 C.F.R. §§483.13 (c)(2), 483.420(d). Psychiatric residential treatment centers are required to report physical injuries, including death, to the State Medicaid and adult protective agencies.  42 C.F.R. §483.374.

Most states have some form of reporting requirements for long term care facilities.  The Virginia Department of Social Services requires assisted living facilities to report within 7 days any majorincident that has negatively affected or threatens the life, health, safety or welfare of a resident.  22 VAC §40-72-100.  Maryland requires reporting on any type of abuse within 3 days.  MD Health Gen §19-347.  California requires reports on elopements, abuse, exploitation, neglect, injury, accidents, unplanned hospitalizations, death and crimes against the resident.  17 CA ADC §54327.  Massachusetts requires reports on unanticipated death, suicide, crimes against the resident, disease outbreaks, accidents and injuries.  105 MA ADC 150.002(G).  In New York, facilities must report suspected physical abuse, mistreatment or neglect.  NY PUB HEALTH  §2803-d.  Texas facilities must document all accidents, unusual incidents and allegations of mistreatment of residents and report such occurrences if they are confirmed and are serious.  TX ADC §19.1923.  Suicide attempts, medication errors, crimes against residents and a variety of other incidents must also be reported by Texas facilities.  25 TX ADC §448.509.

When preparing these reports, it is important to be careful not to include admissions of guilt or prior knowledge of an injury creating condition.  Also, documenting remedial measures taken to address an incident can be problematic because that information can be used to show availability of ameliorative measures that were not previously taken.

In states with no reporting requirements, facilities should consider the efficacy of preparing such reports.  Many courts require production of incident reports in litigation using the rationale that there is no other documentation of the facts prepared simultaneous with the events in issue.  When reporting is required, facilities may avoid report production in litigation by completing the report at the latest permissible date.

Documentation of incidents is a common practice to ensure information preservation.  Such documentation in states that do not require incident reports can be in the nurse notes.  Requiring employees to prepare statements is a common practice that can cause problems in later lawsuits.  Courts have required production of employee statements prepared prior to litigation or threat of litigation.  Most courts will not require production of documents prepared in anticipation of litigation; however, establishing when litigation was initially anticipated is difficult absent threats to sue.  If an insurance carrier takes employee statements or requires that they be taken, some courts have agreed that those statements are prepared in anticipation of litigation, often preventing production to the opposing side.  Stamping “CONFIDENTIAL” on written statements does not inoculate them from production in litigation.

Some states also protect investigative information generated for peer review, safety or quality assurance.  In Virginia, factual information collected during 24 hours after an incident is not protected and must be produced, but evaluative and assessment information is protected for skilled care facilities.

Requirements for written incident reports are driven by state and federal regulations.  If regulations do not require a written report, preparing one may not be in the facility’s best interests.  Preserving the facts can be accomplished in the nurse notes, including documenting contacts with family and physicians.  To avoid production, statements can be prepared through the insurance carrier, when litigation has been threatened or after passage of time to avoid a claim of documenting contemporaneous with the events in issue.   Long term care facilities are often encouraged to document; however, documenting incidents requires proceeding with caution.



This entry was posted in Litigation Issues, Management Advice, Policies & Procedures and tagged , , , , . Bookmark the permalink.

Comments are closed.