Recently, we defended a healthcare provider against claims that it destroyed relevant evidence and the Plaintiff’s attorney sought various sanctions. Sanctions included exclusion of certain evidence and the possibility that the ceiling on an award of punitive damages would be removed. In the case, we firmly asserted to the

judge that our skilled nursing home and its care providers took no action whatsoever “to discard, destroy, mutilate, alter or conceal evidence”.

In healthcare lawsuits, and especially related to senior care, where there are a multitude of arguably relevant records spanning sometimes years over a period of residency, such requests for sanctions are seen frequently. Destruction or “spoliation” of evidence plays a key role in Plaintiff’s attorney’s prosecution strategies. Plaintiff, in our recent case, sought sanctions for the alleged spoliation of the following documents: Treatment records, 24-hour reports, narcotics logs, dialysis communication sheets, and a physician logbook. Plaintiff extracted selective language from a Tennessee case summarizing the older doctrine in Tennessee on spoliation to convince the judge that he should draw a negative inference that the evidence was unfavorable to our client as it had intentionally, and for an improper purpose, “destroyed, mutilated, lost, altered, or concealed evidence.” More direct, Plaintiff made the absurd argument that simply because the facility could not find the records, intention was not necessary and the fact that they were lost or even more far-fetched, were being hidden or concealed that meant legally our client was a spoliater. Finally, a novel argument by Plaintiff was presented that because the facility had a duty to maintain these records, the facility violated the regulations and that also meant our client was legally a spoliater. First, there was no law to support these arguments presented by Plaintiff; and 2) this failed logic would result in spoliation charges in nearly every case where one document was misplaced and simply could not be located. We’ll report back on the ruling.

When litigation or government inquiry is reasonably anticipated, threatened, or pending, there is a duty to timely identify, locate, and preserve data. The duty to preserve applies to all litigants or parties to investigation including individuals, management companies, operators. When we explore the “duty to preserve,” we are referring to a party who “intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue”. We are not referring “the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course

of business or in compliance with the defendant’s document retention policy or state or federal regulations.”

What is the Duty to Preserve Evidence?It is worth noting that certain states have imposed a statutory and administrative duty upon nursing homes to retain potential evidence and medical records for a certain number of years after a resident’s discharge. Federal law, however, requires a duty to preserve evidence upon imminent or pending litigation. Due to the different between the state and federal interpretations, err on the side of preservation.

When Does The Duty to Preserve Arise?In our Tennessee state and federal court, our guiding legal framework is that “Before determining if sanctions are appropriate, the Court must first determine the trigger date when a party is on notice to safeguard evidence. After determining the trigger date, the Court must also determine the scope of the duty to preserve. The trigger date is the date a party is put on notice that it has a duty to preserve evidence. Any destruction of potentially relevant evidence that occurs before the trigger date would be harmless, since the party was unaware of a need to safeguard evidence. More on best practices when you receive a notice of preservation of evidence later.

What is the Scope of the Duty to Preserve?One could say that data preservation began with the case of Zubulake heard between 2003 and 2005 in the United States District Court for the Southern District of New York. Judge Shira Scheindlin, presiding over the case, issued a series of groundbreaking opinions in the field of electronic discovery. Plaintiff, Laura Zubulake, filed suit against her former employer, UBS, alleging gender discrimination, failure to promote, and retaliation. Judge Shira Scheindlin’s rulings comprise some of the most often cited in the area of electronic discovery. A party has a duty to preserve all relevant documents—but not multiple identical copies—in existence at the time the duty to preserve attaches and any relevant documents created thereafter. (Zubulake). The duty to preserve evidence includes the duty to preserve electronic evidence.More reliance on Zubulake, “A party is under no duty to ‘preserve every shred of paper, every e-mail or electronic document’ and the like.” A party “must not destroy unique, relevant evidence that might be useful to an adversary which includes any document made by any individual likely to have discoverable information that the disclosing party may use to support its claim or defenses.” The duty to preserve extends to all relevant documents from the time the trigger date passes and continues thereafter, but the duty to preserve does not require a party to keep multiple identical copies of a document. More on best practices for retention policies and procedures and “litigation hold” letters to key personnel.

The hAT AdvAnTAge by Rebecca Adelman

JUST DO IT! Litigation Hold and the Duty to Preserve

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Sent each Month to You aS a MeMber of the healthcare heroeS

Nursing & Assisted Living Facility Professional

A P R I L 2 0 1 7I S S U E 4 , V O L U M E 7“ N E W S A N D V I E W S Y O U C A N R E A L L Y U S E ”

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Safe Weight Loss Tips For Older Adults

As we age, it becomes more challenging to maintain appropriate body weight. One of the primary factors that contributes to weight gain as we age is loss of muscle mass. After 30, you’re likely to lose up to 40 percent of your muscle mass! Therefore, it is so important for both younger and older adults to engage in physical activities, especially weight training. Once muscle loss sets in, body fat begins to redistribute. Primarily around the mid-section or abdominal region. As we age, our bodies tend to become more insulin resistant, which causes your body to store fat around the liver and organs.Recent Weight Gain Trends in Older Adults

· Over the past 25 years, the population of older adults who have become overweight has increased

· Excessive weight is more common in older women than older men. (This may be linked with males having more testosterone to support muscle growth, whereas females have limited testosterone

Other factors that make it more difficult to maintain healthy weight as we age:

· Lower resting metabolism· Thermal effect of food along with hormonal changes· Hormones such as growth hormone decline which limits

muscle and bone growth· Resistance to leptin could result in the ability to down-

regulate appetite· Physical activity decreases with age

It has been estimated that about half of the calories expended is due to physical activity. The problem with this is that as we age, we eat the same amount of food – however, we only burn about half as many calories due to limited physical activity.Strategies to Safely Lose PoundsMost of you are aware that being overweight places added stress on joints, especially knees and your lower back. This article could go on about many other stresses of excess weight, but if you watch the news, read the paper, or talk to your peers, then most of you already know about the side effects of excess weight on the body. What most people don’t know is how to manage that weight safely and effectively. There are risks involved in losing too much weight in adults 65 and older. Individuals must be careful because there is a risk of losing muscle mass too, which is vital for balance and metabolic function in older adults.Solutions to Get You Started

· Talk with your physician regarding weight loss before starting. Not everyone necessarily needs to lose weight

· Check the circumference of your waist. Ideally, men should have a waistline below 40 inches, and women less than 35 inches, this measurement is taken 2 inches above the belly button

· Evaluate what you eat. Do you really need a full plate and dessert to go with it? Are you engaging in physical activity?

Start with these simple changes to get started. If you think you may need more help, talk to a wellness professional — they would love to help you move forward with living a better quality of life!

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you about your hopes and fears and truly listen to your answers? What strengths do you have and how can staff empower you to utilize them? Hopefully they’ll also inquire how the illness and losses have impacted your daily life and just as importantly, what makes a good day for you.

Is the process around advance care planning in your facility summed up on admission when a resident is asked if they’ve completed their directives “the paperwork” or when they decide code status? Unfortunately, too often this is the extent of advance care planning in many facilities. Meaningful discussions have yet to take place between staff, residents and families. What should be an ongoing discussion upon admission and throughout the entire stay has been relegated to a check off box in an electronic record or on a form.

Take a look at the creative activity ideas on the NHDD website and consider making your facility a hub of education and dialogue. Be bold and normalize issues around death and dying. Be a community leader! Get staff involved and see what imaginative ideas they offer. On a personal and professional note, if they haven’t had these discussions with their own families, partners and spouses, it’s time they lead by example.

With the added regulatory emphasis on person-centered care, and getting residents and families more involved in care planning, the time has never been more opportune to embrace advance care planning that includes process improvements to help staff be successful. To go beyond ineffective questions on directives and delve into robust discussions that weave values and hopes into the dialogue and waylay fears. This level of communication takes training and practice and does not belong to just one discipline.

Be truthful, as a new resident in your facility, how confident are you that your staff are prepared for this level of communication and that your wishes will not only be discussed but honored?

Paige Hector is a clinical educator, who gives workshops and seminars across the country on diverse topics including clinical operations for the inter-professional team, meaningful use of data, advance care planning, refusal of care, documentation and care plans. She is skilled at inspiring staff to critically evaluate their own organizations and then gives them the resources and guidance to make necessary changes.

Contact Paige at 520-955-3387 or at paigehector@gmail.com plus you more discover more about her at www.paigeahead.com

In honor of National Health Care Decisions Day (NHDD, http://www.nhdd.org/about/) which has transformed into an entire week of activities related to this important topic, I’m going to get personal with this article and ask readers to embark on a journey. To set the stage first, if you’re not familiar with the NHDD, this movement emphasizes advance care planning, that every individual must discuss and decide what type of care and treatment they want, and do not want.

Consider this…you have moderate dementia but can still participate in decision-making, have a history of pulmonary disease, chronic pain, diabetes and require assistance with all ADL’s. You’ve endured many losses and are grieving, even fearful of your future at times. And, you’ve just moved into your nursing home.

As healthcare providers of varied disciplines, you likely know the disease progression and ultimate prognosis of the above scenario. We see people like this every day. Now, we see YOU. What do you value? What is important for your quality of life? Would you want treatments such as dialysis, feeding tubes, blood transfusions and to be hospitalized? Are those treatments in line with your values and what you feel is important at this stage of your life? Is your family (however you define it) aware of your decisions and prepared to uphold them, even in the midst of their own fears and grief? What sacrifices are you willing to make to extend your life? Perhaps many, perhaps very few. Whatever you choose is okay. It’s your choice.

People living in nursing homes and assisted living communities have these same choices. The issue then becomes how well we as staff are asking those same questions, documenting and communicating the information and ensuring their wishes are honored.

It’s not just about the paperwork, but the richness of the discussion whereby staff are skilled at engaging residents and patients in these sometimes emotional discussions. Truly, person-centered care!

So, let’s make it personal again. With the diagnoses and grief issues shared above, would it be important that someone ask

Getting on the Same Page by Paige Hector, LMSW

Advance Care Planning Discussions: What Does That Really Mean?

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Who Has the Burden of Proof as to the Relevance of Evidence that has been Lost or Possibly Lost and the Prejudice to the Innocent Party?Plaintiff’s goal is to achieve the most severe sanction possible against the spoliating party including dismissal of the entire lawsuit, limitations on evidence and instruction to the jury that they can infer the records would have been unfavorable for the defense and favorable for Plaintiff. Lawsuits are won and lost of a court’s determination of sanctions again the defense. Essentially, the cases hold that the burden of proof question differs depending on the severity of the sanction. For less severe sanctions—such as fines and cost-shifting—the inquiry focuses more on the conduct of the spoliating party than on whether documents were lost, and if so, whether those documents were relevant and resulted in prejudice to the innocent party.In regards to the severity of the sanction that should be imposed, it is within the broad discretion of the court to impose sanctions. However, “[t]he court should always impose the least harsh sanction that can provide an adequate remedy.” What Type of Proof Is Required to Impose a Spoliation Sanction?

Each state has somewhat different requirements for the type of proof needed to impose sanctions for spoliation. I’ll refer to the most important case in Tennessee discussing whether a finding of intent is necessary as, based on our research, most all other state courts have adopted a similar legal approach. In Tatham, the court refused to dismiss a products liability case as a remedy for the destruction of evidence and the Tennessee Supreme Court determined that this was not an abuse of discretion, because even though the tire that formed the basis of the lawsuit was destroyed as a part of the routine practice shortly following the accident, there was no evidence that this was done intentionally. In its Order declining to dismiss the case as a sanction for spoliation of the tire, the court reasoned that “the Plaintiff did not intentionally participate in the destruction of such evidence following the accident in question. Therefore, the Defendant’s request that the case be dismissed as a sanction for alleged spoliation of evidence is . . . denied.” The case, Tatham, discusses the history of spoliation in Tennessee courts

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and the fact that previously trial courts had to find that the spoliating party “intentionally, and for an improper purpose destroyed, mutilated, lost, altered or concealed evidence.” The Tatham court then enacted a “Uniform Standard” as to spoliation of evidence. The rule is that “intentional misconduct is not a prerequisite for a trial court to impose sanctions for spoliation of evidence.” Notably, the court held that there “is no reason to continue the requirement of intentional misconduct for the imposition of sanctions for the spoliation of evidence…” In Tatham, the court also noted that the trial court has wide discretion and declined to adopt an inflexible bright-line rule. Instead, the court noted that the following factors should be considered when determining whether sanctions should be imposed for spoliation of evidence.

(1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent; (2) the degree of prejudice suffered by the non-spoliating

party as a result of the absence of the evidence; (3) whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; and (4) the least severe sanction available to remedy any

prejudice caused to the non-spoliating party.

This is a significant development for our litigation particularly in healthcare. In senior care matters, we are involved with surveys, investigation and lawsuits as well as related activities such as records requests. We are requesting for our providers thousands upon thousands of records of varying categories–staffing, cost reports, surveys, clinical records, narcotics logs, electronic records, videos, personnel records policies and the list continues. There will also be an impact on prosecution and defense strategies and the approach to discovery and evidence issues. Efforts must be intensified to comply with litigation hold policies in your companies and the retention of evidence. The hurdles are becoming lower and sanctions more severe.

How Do We Implement a Litigation Hold and Intensify Efforts?Create or Update the Company’s Legal Hold Policy and Procedure A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Also called “preservation letters” or “stop destruction requests,” these communications basically advise of the possibility of future litigation and identify relevant documents and ESI which should be preserved. The terms “Litigation Hold Letter” and “Litigation Hold Notice” are used interchangeably to describe written requests from adversaries designed to trigger the duty to preserve relevant evidence.

The importance of implementing a defensible litigation hold policy, procedure and process cannot be over-emphasized. In Judge Scheindlin’s words in Zubulake “Just do it. Just do it.” Below you will find some helpful tips on how to “just do it”. Our firm has designed hold notifications that withstand scrutiny if challenged so feel free to contact me to discuss existing policies and opportunities for enhancements. Generally, the policy should 1) Reduce risk and increase defensibility; 2) Guarantee that holds are issued in a timely fashion and contain all necessary information; 3) Create an efficient method for ascertaining and notifying both custodians and other key personnel; 4) Outline a standard set of data/content types (both print and electronic) to be preserved and this list should be reviewed and updated periodically as new types of data (e.g. social media) emerge.

What Data Potentially Are Relevant?The duty to preserve is a duty to preserve all potentially relevant information related to the threatened litigation. This includes retaining documents that the health care provider knows, or reasonably should

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know, are relevant in the action, are reasonably calculated to lead to the discovery of admissible evidence, are reasonably likely to be requested during discovery, or are subject to a pending discovery request. Exactly what documents should be preserved will depend on the case. In senior care lawsuits, investigations and surveys, we are met with requests to preserve from Plaintiff’s attorneys and the government for extensive types of records expanding across time. As counsel, we evaluate and respond in writing stating the measures we and our clients client taking to identify and preserve relevant evidence. At times, we disagree with the parameters or scope of the preservation request as articulated by the adverse party and offer to consider taking additional measures if the adverse party can show the measures are legitimately warranted under the circumstances.

Who Are the Custodians of Relevant Data?A proper litigation hold is targeted to the custodians of potentially relevant data. You and we will need to determine the people who have direct involvement or knowledge of the events surrounding the threatened litigation or government inquiry. We will complete interview to determine who these individuals are and will determine whether additional persons are data custodians, or have the responsibility to create, manage, or preserve specific types of records. We meet with managers, directors, IT, records custodians, and others and possibly contractors or third parties who handle relevant data over which the company maintains control (off-site data storage, computer systems, or files).

What Data Do the Custodians Have and Where It Is Located?What sort of ESI do you have? Where and how it is stored? Who has access? What about employee smart devices? What about text messages? Voice-mail messages? Backup tapes? Hard drives? Thumb drives? Office lap tops? Social networking sites? Home computers that access the office network? We need an accurate data map so we can articulate and monitor the preservation obligation.

We recommend a litigation response team that includes outside counsel, general counsel/risk management, and IT. The litigation response team’s role is to identify the data custodians, confirm where the data is located, and identification of what systemic changes must be made to preserve data. For example, records destruction must be suspended, software rules modified

What is the Strategy for Managing Privacy and Regulatory Concerns?Data (outside of the electron health record) may contain personal health information, for example, in e-mail, instant message chat transcripts, dictation files, and other forms of data. Compliance with HIPAA is required despite potential conflicts with the applicable court rules. As an example I found, a custodian may assert that certain data are not readily accessible. While information that is not readily accessible may be protected from discovery under the Federal Rules of Civil Procedure, data with personal health information must be readily accessible under the HIPAA Security Rule. Another example is that questions to a custodian about the location of data or the work of the litigation response team may reveal that data are not properly physically safeguarded. We do find this in litigation. We recommend an evaluation of your current HIPAA policy in conjunction with the Litigation Hold Policy.

How Will You Follow-Up With Implementation of the Litigation Hold?As you can see, litigation holds involve more than sending an initial litigation hold notice to the key personnel in your company. You must follow up on the litigation hold to ensure it was implemented properly and is being followed. I send periodic written reminders about the litigation hold as senior care providers can locate records throughout litigation. The litigation hold should continue to be monitored. If it is never mentioned through litigation, there is a risk that custodians could think that the duty to preserve has been met.

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Reminders! Just Do It! (early)Preservation ProductionInterview key custodians and IT employeesDocument process with formal written noticeAnticipate corporate deposition on E-Discovery issuesAgreement on scope of preservationBe aware of cost-shifting particularly

We look forward to continuing this very important conversation and please reach out with questions, comments or both. I welcome feedback on your company’s litigation hold.

Rebecca Adelman, PLLC, Esq. - Ms. Adelman is a founding shareholder of Hagwood Adelman Tipton, PC and practices in the firm’s Memphis, TN office. She is the chair of the firm’s Strategic Planning Committee and Women’s Rainmaker Mentoring Program. For over 25 years, Rebecca has concentrated her practice in insurance defense litigation representing national insurance carriers and self-insureds with a concentration in healthcare law. Please feel free to contact her at radelman@hatlawfirm.com or visit her website: www.rebeccaadelman.com.

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“Just four more bites, Helen. You’re almost done”, coaxed the CNA. She knew the family was upset about the recent weight loss, blaming the staff on lack of attention to her needs. But Helen kept her mouth tightly closed and turned her head away.

The decreasing appetite and subsequent weight loss associated with terminal illness or natural end of life is an emotionally charged issue. Because we associate food as a necessity for health, healing and well-being, we then associate the act of providing sustenance with comfort and a basic standard of care. If a resident declines food and loses weight, does this mean we have not met those standards?

In a facility, issues around eating can be particularly charged because weight loss may lead to conflict between worried families and staff. Blaming and fear of litigation can ensue when the real cause of weight loss is has not been discussed – that the resident is approaching the end of life. Broaching this awareness with both resident and family can be tough and downright uncomfortable. In the short term, it may seem easier to avoid the topic and push food, but that comprises both care and communication. In the long term, it behooves everybody to share a common understanding and approach to the expected changes in appetite, to provide the most comfortable and person-centered care that reflects the individual resident’s level of function and realistic goals. No Assumptions - Assess first!

Whether or not a person is enrolled in hospice, reversible causes of weight loss should always be addressed. Interventions for nausea, poor fitting dentures, mouth sores, pain, poor eyesight, taste changes, cognitive changes, and constipation can and should be addressed. No one should be deprived of the joy of eating when the cause is fixable.

What is not ‘fixable’ is the Loss of appetite that commonly accompanies the end of life. This is a natural and normal part of the body beginning to shut down. The ability to process food will diminish over time. Depending on the particular illness, this can begin days, months and even years before death. If we push food when the body says, “No”, we may inadvertently create discomfort from nausea, cramps, aspiration and throwing up. In end-stage cancer, food may actually “feed the tumor”, leading to more discomfort.

It is critical that staff from different disciplines have access to ongoing training about disease progression, and understands the natural and normal changes that occur in the finals months to days of life. By empowering staff with the tools to engage the family in simple and compassionate dialogue and education, they can assure them their loved one is getting the best care possible.

Honoring the body’s natural decline and its inherent wisdom is a gift that staff and families can bestow upon every resident. Reassure everyone that the best care is the care that upholds that wisdom, and avoid compromising quality or quantity of life through unwanted or

Just Four More Bites!Responding to Appetite Changes Near the End of LifeBy Tani Bahti, RN, CT

Editor’s Note: Nursing and Assisted Living Facility Professional is pleased to welcome nationally known end-of-life expert, filmmaker, and educator Tani Bahti to our pages. Ms. Bahti has extensive experience working with long-term care professionals in order to discover how to provide much needed compassion and assistance to facility residents and families who are coping with this most sensitive of issues.

Tani, in association with Extended Care Products, will present for your consideration, the 60 minute webinar “From Touchy to Touching- Demystifying the Dying Process” on Thursday, May 11. Discover more at www.WebinarLTC.com

inappropriate interventions.

We also must tend to the grief and fear that accompanies the understanding that this person is declining. Engage staff in role play and let them practice saying statements like those below. “It can’t be easy to see the changes in your mother. What has it been like for you? What are your biggest concerns? How can I/we best support you both during these changes? What types of things did she enjoy when healthy?”In finding out more about this person, and incorporating that knowledge into a meaningful care plan, the staff creates a partnership with families and each other while focusing on the resident’s needs and quality of life.

Focus on what is possible

When someone is near the end of life, and there is nothing we can do to reverse that process, it can create a sense of helplessness for both staff and the family. That is uncomfortable. It can be beneficial to help your staff and family focus on and participate in nurturing actions, other than feeding, that can still be done. That may include massage, brushing hair, reviewing a photo album, singing together or sitting quietly at one’s bedside holding a hand. Touch, laugher and joy will stimulate the production of endorphins, which promote comfort, connection and a sense of well-being. For everyone.

While four more bites may no longer nourish your resident’s body, four more hugs may nourish their spirit.

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