Key Risk Insights from Senior Care Litigation Seminar

Focus: 2025 DRI Senior Living and Long-Term Care Litigation Seminar retained risk mitigation.

The common practice of caretaking lends itself to developing and initiating proactive risk management protocols and step actions, which not only manage the known trends, but the perception of an environment of complete safety.

The Reptilian Theory continues to prevail in the courtroom and must be understood and considered as the verdicts are driven by the public’s perceived threat for the carelessness of care delivery and “profits over people” themed legal approaches.

Can’t Miss Takeaways Summarized

• Tighten Contracts and Arbitration Agreements

  • Review all management agreements and staffing agency contracts if used to ensure clear indemnification language, avoid ambiguous clauses, and update arbitration agreements to support enforceability.

• Strengthen Documentation

  • Conduct prompt incident investigations and root cause analyses, update care and service plans regularly and make sure this update can be recognized by direct care staff.  Document all family communications and utilize negotiated risk agreements for risk which cannot be modified.

• Staffing as a Focus

  • Proactively manage staffing ratios, and be aware of the acuity level, ensure accurate Payroll-Based Journal (PBJ) if skilled, and develop a signed orientation packet for agency staff that includes key community information.

• Audit Marketing Language

  • Remove or reframe absolute claims (“exceeds expectations,” “highest priority”) that could be used by plaintiff attorneys to allege misrepresentation.

• Engage Experts Early

  • Involve wound care physicians and staffing experts early in the claims process to establish defensible positions and challenge plaintiff narratives.

Here are the key risk management themes discussed and how senior care providers can strengthen their defenses, reduce exposure, and stay ahead of emerging litigation risks:

Organizational Oversight

Align Your Defense with Your Mission: Ensure defense counsel fully understands your organization’s mission, vision, and values to effectively rebut “profits over people” claims and to humanize your team.

Review Management Company Contracts: Plaintiffs are frequently going after both management companies and ownership.  Verify that indemnification language is present and enforceable.  Consider legal review of all management agreements.

Revamp Arbitration Agreements: Work with knowledgeable counsel to ensure arbitration agreements are enforceable and current with state law trends.

Early & Frequent Communication: In the event of a claim, maintain regular contact between leadership, insurers, and defense counsel; pursue early resolution options like mediation and arbitration when possible.

Coordinate Regulatory & Legal Strategy: Build collaboration between regulatory counsel and defense counsel to address overlapping litigation and regulatory issues.

Support for Assisted Living: Defense counsel should consider the level of care the resident or family contracted for—this can strengthen the case in assisted living claims.

Audit Marketing Materials: Review brochures, websites, and advertisements for absolute claims (“highest priority,” “exceeds expectations”) that may be used by plaintiff attorneys to argue misrepresentation or fraud.

Deposition Preparation: Ensure defense counsel adequately prepares owners, managers, and frontline employees for depositions.  Train them on key pitfalls and opportunities to support the case.

Clinical

Investigate and Learn from Incidents: Complete incident investigations promptly to capture staff recollections early.  Conduct root cause analyses to document lessons learned and actions taken—this is key to countering Reptile Theory arguments.

Leverage Wound Care Expertise: Claims involving wound infection are clinically complex and warrant involvement of a knowledgeable wound expert to establish causation (systemic vs. localized infection) and clarity on actual damages. Wound infection can be inevitable, but clinical evidence is needed to support this, such as documentation from the treating physician and wound care provider.

Document Resident Non-Compliance: Ensure both community and physician documentation reflects resident non-compliance with daily hygiene, repositioning, or treatment plans when applicable.

Challenge Regulatory Findings When Warranted: Contest citations that are inaccurate, as regulatory outcomes can play into litigation.

Maintain Up-to-Date Care Plans/Service Plans: Regularly review and update care plans and service plans and document communication with responsible parties.

Communicate Level of Care Changes: Particularly important in assisted living, document conversations with families about changes in care needs and potential transitions to higher levels of care.

Manage Expectations: Clearly communicate what care and services can and cannot be provided.  Utilize Negotiated Risk Agreements and keep these agreements current with changes in resident condition and care level.

Staffing

Proactively Manage Staffing Risk: Understaffing is a frequent plaintiff argument.  Ensure staffing data is recorded and reported accurately, as plaintiff attorneys are comparing (for skilled nursing) PBJ data, cost reports, and facility assessments for inconsistencies.

Validate Facility Assessments (skilled): Use facility-wide tools to establish initial staffing levels, while also accounting for unique resident needs.  Document rationale to defend against “one-size-fits-all” plaintiff arguments.

Strengthen Agency Contracts: Review all staffing agency agreements to ensure clear indemnification language and avoid ambiguous clauses.  Seek attorney review before signing.

Verify Insurance and Status: Staffing agencies are more frequently using independent contractors vs. their own employees.  If using independent contractors, verify each individual’s insurance coverage and maintain records.

Resident Informed Consent: Consider including an informed consent form at admission that discloses the community’s use of independent clinical staff (examples: agency staff, physicians, therapists), drafted with legal counsel.

Formalize Agency Staff Onboarding: Establish a process to collect:

• Licenses and certifications

• Background checks

• Agency-provided training documentation

• Certificates of insurance (agency and individuals)

• Signed internal orientation packet including contact numbers, floor plan, documentation requirements, and facility expectations.