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Legal Speak

Not Feeling the Love

Published March 4, 2011 1:12 PM by Tony DeWitt

If you've flown in the last few years, you've seen this traveler. He is irate. His plane was late. He needs to be in Philadelphia (or Boston, or Tupelo...) tomorrow. He doesn't want excuses, he wants answers. And he doesn't know how to keep his voice below 500 decibels either. Delta Airlines recently announced it was sending all of its employees to "charm school" to become better at dealing with the upset traveler. It's not a bad idea.

But, it's not necessarily a good idea either. There is an emerging school of thought that "the customer is not always right."  The CEO of Southwest Airlines at one point simply "fired" a customer who Southwest simply couldn't please. I frequently tell people that the best malpractice insurance you can buy is to have a good relationship with your residents and their families.  But sometimes, no matter what you try, you can't do that. Not because you or your facility lacks the skills or ability, but because the customer simply won't be won over. Customers like this are about 90 percent more likely to go to court for redress of their grievances than are any other group of people. And, unfortunately, once a client becomes a resident, your rights to "fire" them as a customer are severely restricted by federal law.

Once a resident is admitted, a facility cannot simply discharge that person because the family is unreasonable. But what the facility can do is keep a log of the unreasonable demands, and the ways in which the facility attempts to keep the customer happy. 

One of the best ways, however, to get residents and families like this to move to another facility, is to put into your admission contract what is covered, and what is not. When a family member complains because the resident's laundry has not been done, a specific memorandum to the family is written laying out the contract language and stating that is not within the services provided, but that other facilities may offer such services and that the family is free to move the resident if they so desire. Under no circumstance should the facility manufacture a reason to admit the patient to a hospital in order to effectively evict the patient by default. These kinds of tactics frequently wind up with the facility receiving a sanction.

When a family becomes unreasonable, they should be met and greeted by the best person in the facility at dealing with disgruntled customers. This is the person who can take any amount of abuse with a smile, nod at appropriate places, and then simply tell the family that the current contract and facilities do not permit what they want, and that they are free to move out if they require services that the facility cannot provide. No one should shout, no one should raise their voice, and if the family members do, it should be pointed out to them that they are disturbing other residents and this is contrary to the visitation requirements. 

Some facilities send a post-meeting memorandum:

"Dear Ms. Jones,

Several times during our meeting today you raised your voice and threatened our staff with lawsuits and with violence. While we support your right to hire an attorney and take any legal action you deem appropriate, we cannot allow you to threaten our staff or disturb the rest of our residents. We can and will take legal action to protect our residents and our staff if there are further episodes of this nature."

Where family members get out of control most states have a peace bond or order of protection procedure whereby the facility can lawfully ask a court to prevent the person or persons from coming to the facility and threatening the staff. Legal counsel should be sought before resorting to this, however, because it could also be perceived as a back door eviction, and there could be repercussions from Medicare. As with all legal issues, documentation is key. And, while it may be tempting to tape record situations like this, unless video or audio monitoring is clearly disclosed, it is an unwise idea.

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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