February 15, 2018

Mandatory Reporting of Child Abuse and/or Neglect: A Liability Concern?

Avoiding Liability Bulletin – February 15, 2018

As you are hopefully aware, nurses are among the health care providers who are required to report a good faith belief or suspicion that a child has been abused or neglected. This mandate is included in the state statute that governs the reporting (such as a Child Abuse and Neglect Act). In addition, state nurse practice acts list a failure to report such abuse or neglect as a ground for discipline of the nurse licensee.

Many times, nurses, as well as other mandated reporters listed in the state statute, are hesitant to inform the designated state agency for reporting because of concerns that they may be sued by the parents or guardians of a child so reported.

In the following 2017 Kansas case1, a report to the state agency that a 9-month-old female had been severely and chronically sexually abused illustrates how this court interpreted the reporting statute and its specific protections of those who in good faith report child abuse.

T.H. and C.C. took their 9-month-old daughter, R.N.C., to the University of Kansas Hospital ED for a respiratory infection. The ED physician suspected that R.N.C. experienced long-term sexual abuse.

The physician alerted the police. ED nurses conducted HIV and STD tests on the child.2

After an investigation, the physician’s suspicions were not founded. The parents filed a suit against the physician and the hospital—but not the ED nurses–and sought monetary damages for pain, suffering, mental anguish, medical intrusion, outrage, humiliation, medical expenses and the economic loss they experienced due to the physician’s report. They also alleged that the physician misdiagnosed sexual abuse, no factual or medical basis existed for the physician’s belief of sexual abuse, and that the physician’s reporting “intentionally and/or recklessly inflicted emotional distress” on them.1

The Hospital filed a Motion to Dismiss the suit due to a failure to state a claim upon which relief could be granted. The parents did not amend their complaint but instead argued that the complaint contained enough facts for the court to infer malice (a requirement for liability of a reporter who did not report in good faith).

After a hearing, the judge dismissed the lawsuit, opining that the parents failed to allege the physician acted with malice and granted statutory immunity to the Hospital and the physician. The parents appealed the decision.

Carefully reviewing Kansas law and a Missouri case that applied Kansas law, the appeals court held that immunity under the state statute does apply to “doctor misdiagnosed abuse”. The court went on to state that this policy goal is to provide for protection for children who have been abused by encouraging the reporting of suspected child abuse and neglect.

Without this protection of immunity, the court continued, health care providers would “face a dilemma. By reporting suspected abuse, they would open themselves up to malpractice actions, but by declining to make a report, they could be guilty of a misdemeanor.”

The court also cited other states with the immunity protection for health care providers also applying to both the diagnosis and reporting of suspected child abuse.1

Moreover, the court continued, the statute requiring reporting of child abuse or neglect and its immunity protections must be liberally construed and applies to “all who participate in the making of a report” as well as anyone “who participates in any activity or investigation relating to the report”.

The court also held that the parents’ allegation that the physician made the report with malice was without merit. No such facts were plead in the complaint. Rather, simple conclusions about their responses to the making of the report existed in the complaint.

Malice, defined in Kansas as a specific intent to injure when making a report, must be supported by a fact or facts. A court cannot infer malice when a report is made without fact or facts allegations.

The appeals court affirmed the dismissal of the suit in the lower court.

It is not clear why the nurses were not named in the suit. They were involved in the care and testing of the infant and may have provided information to the police as witnesses as well. However, the parents elected to name only the physician.

Even so, this case should be helpful to you if you ever are faced with a good faith belief of suspected child abuse or neglect of whatever nature and you need to report your concerns. Statutory protection exists when a report is made in accordance with the statute’s guidelines.

Implications for you include:

Know your state child abuse and reporting statute and adhere to its requirements;
Know your employer policy when child abuse or neglect of any kind is suspected in good faith;
Comply with reporting requirements as quickly as possible, heeding directions from the state statute;
Remember that if you do not report your good faith suspicions as mandated, you face disciplinary action by your state board of nursing;
If you are a nurse manager, supervisor, or CNO, never prevent a nursing staff member from reporting suspected child abuse or neglect; you will face discipline by your state board of nursing;
Be honest, factual, and furnish complete details about your suspicion, whether orally, in writing, or both;
You do not need to be certain abuse or neglect has occurred, but you must have a good faith belief that it has occurred;
Remember that nurse-patient confidentiality does not apply when reporting child abuse or neglect; and
Immunity protection is broad based and if sued, the suit will be dismissed if you followed your obligations under applicable state statutes.

FOOTNOTES
1. T.H. and C.C., Individually, and R.N.C., by and through Her
Next Friend and Natural Mother, T.H. v. University of Kansas Authority d/b/a University of Kansas Hospital and Francesca Perez-Margues, MD., No. 114,285, Court of Appeals of the State of Kansas, January 6, 2017.
2. “Child Abuse: Mandatory Reporter Immune From Lawsuit”,
Legal Eagle Eye Newsletter for the Nursing Profession, February 2017, 2.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

February 1, 2018

Patient Suicide and Death by Rational End-Of-Life Decision

Avoiding Liability Bulletin – February 2018

While a patient’s suicide and a patient’s rational and legally supportable decision to end his/her life both result in the death of the patient, these two potential occurrences require mental health practitioners to act in different ways when presented with either scenario. Some may ask why I chose to write about these seemingly separate issues in the same article. Perhaps I do so because the term “physician-assisted suicide” has been used for more than a decade, thus connecting the thought of “suicide” with physician-assisted death. As more states enact or move toward an end-of-life option for the terminally ill, mental health practitioners may see increased numbers of patients who seek death pursuant to such state laws. Some patients may seek death with dignity in circumstances not specifically covered by a death with dignity or end-of- life option statute. The reality of patient suicide will continue to be a part of the landscape. The practitioner will inevitably have to weigh whether to support or understand a patient’s informed and rational decision to end his/her life or whether to attempt to prevent the patient from the intended self harm. The lines may not always be clear.

Patient suicide is typically or often the result of a serious mental disorder (e.g., severe depression) which impairs the judgment of the patient and results in death by the patient’s actions and/or inaction. With respect to a suicidal patient, the practitioner’s instincts and professional obligations are generally directed at prevention. What is the duty of a licensed mental health practitioner when the practitioner determines or reasonably believes that the patient presents a danger to self (possibly suicidal)? While practitioners must be familiar with the law in their particular states, the duty, generally stated, is one of due or reasonable care to do whatever may be necessary to lessen or prevent the threat of self harm or suicide. The duty is often exercised by taking one or more of the following actions (and there are others), depending on the circumstances; increasing the frequency of treatment, referral to a physician (psychiatrist) or other licensed practitioner specializing in such cases for further treatment or for possible medication, clinical consultation, voluntary hospitalization, and informing select others (those reasonably likely to be helpful in preventing or lessening the threat) of the danger of self harm.

In a state where there is a “death with dignity” law, the licensed mental health practitioner could be involved as a treating psychotherapist or, depending upon state law, as an assessing mental health practitioner or specialist. With respect to a patient’s rational and supportable decision to die (as the result of a terminal illness and in accordance with a state law allowing the end of life option) the treating practitioner’s instincts and professional obligations are generally directed toward understanding and support as the patient navigates the statutory life-ending process. In California, the recently enacted law allows only psychiatrists or licensed psychologists to act as the “mental health specialist” to whom the patient may be referred if the patient exhibits signs of a mental disorder. The mental health specialist’s assessment is made for the purpose of determining that the patient has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.

There are innumerable scenarios that can arise, both in states where there are no end-of -life statutes and in those few states where there are end-of -life statutes. Some of the scenarios can present thorny dilemmas, questions, or concerns for the prudent and concerned practitioner regarding the duty owed and the action(s) to be taken in a particular case. The moral and philosophical beliefs and deeply held views of mental health practitioners, especially with respect to death and dying issues, together with their commitment to work in the best interest and welfare of patients, will of course influence the decisions and actions of practitioners. Additionally, one’s fear or understanding of the legal and regulatory system in the particular state involved will also influence the actions taken by a practitioner in a particular scenario. Ultimately, the treating practitioner may either attempt to prevent or lessen the likelihood of the patient’s death or will support the patient’s rational, informed, and understandable decision to end his or her life.

In a death with dignity situation (where there is no statute authorizing an end-of -life option), the treating practitioner who wants to be supportive of the patient’s intentions must, at a minimum, be certain that there is no serious or debilitating mental disorder present, or if there is a mental disorder, it does not impair the patient’s judgment. Another thorny scenario might occur for a treating mental health professional where a physical illness is not considered terminal, but there is long-existing severe physical pain and suffering. This could occur in a state where there is a statutory end-of -life option but the conditions and requirements of the statute have not yet been met, or it could occur in a state where there is no statutory end-of- life option. In these thorny situations, it is important to ascertain if it is a crime to aid, advise, encourage, or assist another to commit suicide in the state involved. The important question that arises is whether continued treatment of the patient, with understanding and support for the patient’s decision, constitutes the unlawful or criminal rendering of aid or assistance to a suicide.

Are there risks involved in being the supportive therapist or counselor under such circumstances? Of course there are risks – there usually are. Each of these scenarios presents a variety of concerns for the treating practitioner who seeks to avoid liability. One never knows who might learn of the practitioner’s actions and who might be interested in filing a lawsuit, complaining to the licensing board, or filing a criminal complaint with a law enforcement agency. Each scenario presented could engender a different approach by the practitioner based upon the various factors mentioned above. Consultation with expert clinicians and an attorney familiar with the legal issues involved would likely be necessary and certainly wise in such thorny situations. Referral to a mental health practitioner for an independent assessment that may corroborate the treating practitioner’s assessment of rationality and lack of impairment of judgment as the result of a mental disorder would likely be helpful in the event of civil or criminal litigation related to the action or inaction of the practitioner.

An entirely different scenario would occur where an anorexic and severely depressed patient refuses to see a physician, despite the entreaties from the treating practitioner, and desires to continue to lose weight until there is a failure to thrive. The patient seeks the treating practitioner’s understanding and support. The anorexic and severely depressed patient seems to me to be one involving intended suicide, where the practitioner would attempt to prevent the self harm and, at a minimum, attempt to inform the patient’s physician of the patient’s stated intent and current condition. Written permission from the patient to communicate with the physician or other health care providers or family members would typically not be required. Moreover, the practitioner would likely consider hospitalization of the patient, whether voluntary or involuntary, and taking other actions aimed at preventing the intended death of the patient. The practitioner would be required to render reasonable care – that is, the care that a reasonably prudent practitioner of like licensure would render under the same or substantially similar circumstances.

The primary purpose of this article is to stimulate thought and discussion rather than to definitively answer specific questions about particular end-of-life scenarios. This article represents the first time I have thought or written about end-of-life related issues (other than suicide) that may affect treating practitioners. It was triggered by a recent question from a licensed mental health practitioner. Most practitioners, I suspect, may not have yet encountered situations where they provided supportive care to a patient or client who chooses to die pursuant to the applicable statutory option, or who chooses to die without the specific statutory authority or in possible violation of state law. As new laws are passed, and as this issue is more often encountered, therapists and counselors will seek clarity and understanding from – among others – colleagues, educators, codes of ethics, and professional associations.

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About the Author

Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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Nurse Questions Judge’s Decision That She Had The Intent To Defraud Medicare

Avoiding Liability Bulletin – February 1, 2018

I have not reported many cases of criminal liability of nurses in past Bulletins. The following case¹ involving criminal convictions of a nurse is one that I believed needed to be shared with you due to the astonishing conduct of the nurse.

Janice Troisi, a nurse, worked for At Home VNA (AHVNA) on a part-time basis. AHVA “aggressively” enlisted Medicare-insured individuals for in-home nursing services who were not in need of such services or were not homebound.

Triosi told the nurses at AHVNA to fill out these patients’ OASIS Forms to indicate, inaccurately, that the patients were incapable of caring for themselves. Thereafter, Troisi filled out another required form for Medicare (Form 485) for each patient, placing false information that was required by Medicare coverage for in-home nursing services.

The false documentation was easy to pass on to Medicare because the AHVNA Medical Director signed the forms without reviewing them and, in many cases, never met with the patients.¹

Nursing staff at AHVNA did home visits to the patients but most were visits by nurses that did not provide skilled services. Troisi directed the nurses to falsify their notes to reflect that they had provided skilled services. These fraudulent records were then used to bill Medicare.

On January 1, 2019, Troisi was appointed AHVNA’s Clinical Director. The government’s theory about this appointment was that the nursing owner of AHVNA, Michael Galatis, believed that Troisi could—and did—take the scheme “to another level”. As a result, she had a direct stake in the fraud even though she did not receive the reimbursement checks from Medicare.

Triosi and Galatis were charged with one count of conspiracy to commit health care fraud and eleven counts of substantive health care fraud.²A jury trial resulted. However, a mistrial was declared against Triosi because she was ill and could not participate in the trial. She waved her right to a jury trial on retrial. A bench trial, with the same district judge who presided over the earlier trial, began 10 months after the mistrial occurred.

During the bench trial, 217 documentary exhibits, including all transcripts of the testimony of 27 government witnesses who had testified at the jury trial, were admitted into evidence at the bench trial per the agreement of Triosi and the government.

Four additional witnesses for the government testified at the bench trial. Witnesses included patients who were recruited into the elaborate scheme and AHVANA nursing staff who had provided care to those patients.

Troisi called no witnesses at the bench trial and introduced five exhibits. Her main defense was that the government had not proved that she possessed the required intent to be charged of conspiracy to commit health care fraud and health care fraud.

The facts during the bench trial underscored Troisi’s involvement in the scheme that started in January 2006 until 2012. Her role became more emphasized in January 2010, when she was promoted to Clinical Director. As a result of her actions, the government was billed for $27.6 million in false claims, $19.9 million of which were paid by the government.¹

Troisi was convicted of conspiracy to commit healthcare fraud and health care fraud and sentenced to 36 months of imprisonment followed by three years of supervised release.

The nurse appealed the bench trial judgement, alleging again that the government did not prove she had the required intent to be convicted of the charges against her.

The appeals court clearly stated that the government had indeed proved Triosi had the required intent to commit the crimes for which she was convicted. “Several strands of circumstantial evidence support [ed]” her culpable state of mind.¹

Those strands included that she: (1) could not claim she was ignorant of the regulatory scheme she helped establish; (2) exercised total control over AHVNA’s preparation of documents required for Medicare reimbursement; (3) instructed nursing staff to put particular information on required forms whether the information was true or not; and (4) did not dispute her actions that directly and crucially furthered the scheme.

The convictions were affirmed.

This decision is one to remember for many reasons. First and foremost, fraud in any manner is unacceptable, but attempting to defraud Medicare or any other health care program is ringing your own death knell. Not only is it illegal, it is unethical, and you face imprisonment if found guilty.

Second, you face disciplinary action by your state board of nursing for unprofessional conduct and falsification of patient care records or any record required to be kept by you at the very least. With proven conduct such as this case illustrates, it would not be difficult to perceive a board of nursing revoking a license held by a nurse.

Third, it is interesting that nowhere in the case is reported what license Triosi held: RN or LPN. This is not a crucial point. It goes without saying that whatever license you possess, you would be disciplined. And, the same would hold true if you were a CNA or nursing assistant.

Lest you think those involved in a scheme such as this will “stick together”, nothing could be further from the truth. Here, the Medical Director entered into a plea agreement with the government to plead guilty to (only) one count of healthcare fraud in exchange for testifying against Triosi. When a lawsuit occurs, each person is only concerned about non-liability, or lessened liability, for himself or herself.

Fifth, never get involved with developing a scheme to make money fraudulently. You may never be tempted to do so, but if you are, think about this case and its consequences for Triosi.

Don’t follow anyone’s order or direction to falsify patient care records. Notify your immediate supervisor, or, if necessary, take your concerns outside the agency in order to protect yourself against criminal and other legal charges.

The AHVNA nursing staff raised their concerns about falsifying patient records, but Triosi ignored their worries and often changed records herself when the nurses did not document what she instructed them to do.³

Last, keep in mind that professional liability policies exclude criminal charges from their coverage. As a result, any attorney fees and other costs during a trial will be funded by you.

FOOTNOTES

United States of America v. Janice Troisi, No. 16-1046, United States Court of Appeals, First Circuit, February 24, 2017. Available at: caselaw.findlaw.com/US-1^st-circuit/1850173.html.
Michael Galatis was also separately charged and found guilty of seven counts of money laundering.
“Home Health: Court Upholds Nurse’s Criminal Conviction For Defrauding Medicaid Program”, Legal Eagle Eye Newsletter for the Nursing Profession, April 2017, 7. Interestingly, all of the nurses were hired right after graduation without prior patient care experience.

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Can Fitness Facilities Be Liable for Defective Equipment Injuries?

Avoiding Liability Bulletin – February 2018

Please note: the following article relates to a products and completed operations liability case. CPH & Associates does not offer liability insurance for products and completed operations BUT wants this article to serve as a critical reminder stressing the importance of the selection, set up, placement and maintenance of equipment so that these types of situations don’t turn into professional liability claims related to negligence.

In a recent and interesting case from New Jersey,[i] an appeals court reviewed a trial court’s decision in a fitness equipment injury case where summary judgment was granted to the defendants. In this case, the facts were reported as follows:

Around the time of the accident, HealthQuest employed plaintiff as a personal trainer; plaintiff was also a weight-lifter and body-builder. On June 9, 2012, during his off-hours, plaintiff was lifting weights at HealthQuest’s facility. He placed an estimated six to seven hundred pounds of evenly distributed weight on a hack squat machine. After performing at least two repetitions, plaintiff “went to push up [when] the machine dropped and crushed [him] under it.” He suffered serious injuries, which have significantly impacted his lifestyle and career.

In this action, plaintiff argues his injuries resulted from the hack squat machine’s defective design. . . Regarding the products liability and negligence claims, plaintiff contends HealthQuest allowed the hack squat machine to remain in the stream of commerce despite known risks. He also argues that Coulter, an Ohio-based sporting and recreational equipment retailer, markets and sells the product as successor to Nebula Fitness, LLC (Nebula), the subject machine’s manufacturer.

Although the plaintiff was an employee of the defendant facility, the instant action was not treated as a worker’s compensation type claim since the employee’s injury occurred during non-employment hours. In support of the plaintiff’s product’s liability and negligence claims, the plaintiff submitted to the court equipment reports from an industrial engineer and one from a kinesiology specialist. The engineer “determined the machine in question lacks lower safety stops and product warnings and safety instructions.” The kinesologist stated:

that the machine’s lacking lower stops “deprived [plaintiff] of the protection provided in other comparable hack squat machines.” He further opined “HealthQuest’s failure to provide a safe hack squat machine created an unreasonably dangerous condition that [caused plaintiff’s] injury.”

In response to the plaintiff’s suit the defendant HealthQuest moved for summary judgment arguing that it did not place the hack squat machine into the stream of commerce and as a consequence, it could not be liable for any injuries allegedly caused by the device. The trial court found that the defendant “never manufactured, distributed, or sold the hack squat machine . . . [and] never placed the machine into the stream of commerce.” In regard to the plaintiff’s claim based upon negligence, the trial court found that the plaintiff failed to submit any proof that the facility had notice of the machines’ defects. While the plaintiff attempted to counter that assertion based upon the statement that he heard the machine injured another employee some 9 years earlier, the lower court determined that such hearsay was inadmissible. While other claims were also asserted, the trial court granted summary judgment to the defendant. The plaintiff appealed.

On appeal the appellate court analyzed New Jersey law and noted as follows:

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable[, ] or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

The Act defines a “product seller” as:

[A]ny person who, in the course of a business conducted for that purpose: sells; distributes; leases; installs; prepares or assembles a manufacturer’s product according to the manufacturer’s plan, intention, design, specifications or formulations; blends; packages; labels; markets; repairs; maintains or otherwise is involved in placing a product in the line of commerce. [N.J.S.A. 2A:58C-8]

Based upon the stated law, the appellate court determined that since the defendant “did not manufacture, sell, or distribute the subject hack squat machine” it could not be liable under New Jersey Product Liability Laws. As to the plaintiff’s common law negligence claims, the appellate court noted that the decision of the trial court was correct because common law negligence claims require notice and an opportunity to cure a defect before liability can be successfully asserted. The appellate court determined that the 2008 injury to another employee involving a hack squat machine was properly excluded from consideration and as a consequence, the defendant could not be liable.

Despite the ruling in the case, facilities and personnel would be prudent to remember that the placement of equipment into service which is known to be defective or which is allowed to become defective due to a lack of proper maintenance or because of usage without appropriate maintenance or repair can expose facilities to claims related to product problems. Exercise machinery and fitness equipment needs to be properly selected, assembled, setup and placed in service, maintained in accordance with the standard of care and manufacturers’ instructions and if in need of repair, removed from service until repaired. Personal trainers and other fitness personnel are frequently involved in these activities and need to carry out these responsibilities.

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented. It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work. If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought. Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

[i] Leka v Health Quest Fitness, et al., No. A-2213-15T4, Superior Court of New Jersey, Appellate Division, October 26, 2017.

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Month: February 2018

Mandatory Reporting of Child Abuse and/or Neglect: A Liability Concern?

About the Author

Nancy Brent

Patient Suicide and Death by Rational End-Of-Life Decision

About the Author

Richard Leslie

Nurse Questions Judge’s Decision That She Had The Intent To Defraud Medicare

About the Author

Nancy Brent

Can Fitness Facilities Be Liable for Defective Equipment Injuries?

About the Author

David Herbert