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Legal Speak

Can You Handle the Truth?

Published February 10, 2011 3:46 PM by Tony DeWitt
Jack Nicholson's famous line in A Few Good Men, "You can't handle the truth," is often what I think of when I read reports about delays in reporting patient incidents to state agencies.  Recently, in Minnesota, a nurse's aide sexually assaulted a patient, and the healthcare agency did not report the matter for five days.

Every parent tells their child that they should tell the truth, and that no matter how bad something is, lying about it makes it worse.  And, of course, everyone has usually discovered this universal truth for themselves, and usually the hard way, at some time in their life. That is why it is such a mystery to me that facilities, knowing what the law is about reporting acts of sexual misconduct, still manage to ignore it, and seem surprised when they are sanctioned.

The purpose behind abuse and neglect law's reporting deadlines is to facilitate criminal investigation of events. If a patient is raped by a visitor or another patient, and the patient is bathed, or the report is delayed for several days, key forensic evidence is lost, and often prosecutions cannot commence against the perpetrators because of that. That is why nearly every state has a statute that requires immediate reporting.

But in one case I worked on, a nursing home that knew a patient had been beaten with a wheelchair leg did not report the incident immediately, and only reported it when the patient died.  Instead of reporting the truth to the state agency, the facility reported that the injury was of "unknown origin" and told the family that the patient had fallen out of his bed about six inches off the floor.  The purpose in the delay was to prevent yet another sanction against the frequently-sanctioned facility, but the act came at a steep cost. The Chief Operating Officer of the facility spent a full year in the county jail, and about 11 months in a federal prison as a result of his conduct.

In the Minnesota case the agency involved did not report the abuse. In spite of that the wrongdoer has been identified and is likely to be prosecuted.  But what facilities should understand is that violating the rules, or failing to make a report makes prosecutors angry, and if they cannot nail the rapist or abuser, they are certainly happy to go after the person who caused the wrongdoer to be able to get away with it. They can and often do prosecute both the person making the decision not to report, and the corporate entity involved for violation of the state statute. Convictions can result in de-certification under Medicaid, and often Medicare.

When a bad thing occurs and it involves potential criminal activity, the corporate mentality suggests circling the wagons and controlling the internal investigation in such a way that the truth doesn't need to come out. Often this is motivated by a desire to prevent bad media coverage from casting the facility in a bad light. 

But the media coverage is far worse when such an event occurs and the criminal responsible can't be prosecuted because the facility did not do what it was supposed to.  And corporate reporters and crime beat reporters are more than happy to cover trials of failure to report, and this just keeps the bad event in the public eye longer.  Instead of a one or two day story, the case becomes a two year story.  What seems like a good idea (controlling the investigation) comes back to have been a terrible decision.

No facility is perfect. Sometimes bad employees or difficult patients do things that are criminal. Honesty and full disclosure to the state reporting agencies should be the only policy in such an event. A facility can recover from an employee who does the wrong thing, but it frequently will be sued, and sometimes criminally charged when it attempts to hide the crime. A plaintiff's lawyer likes nothing better than a cover up, because cover ups get juries very angry.

As former president Nixon learned, it is the cover-up, not the crime, that can kill you.

posted by Tony DeWitt
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About this Blog


    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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