DAY ONE: TUESDAY, JANUARY 31, 2012
7:15 Registration and Continental Meet-and-Greet Breakfast
8:15 Co-Chairs’ Opening Remarks
Timothy J. Cesar
Vice President of Legal- Litigation
Brookdale Senior Living (Milwaukee, WI)
Donna J. Fudge
Partner
Fudge & McArthur, P.A. (St. Petersburg, FL)
8:30 In-House Th ink Tank Session I: Proactively Preventing Costly Litigation and Strengthening the Provider Defense
Jonathan D. Allred
Vice President & General Counsel
Evergreen Healthcare (Vancouver, WA)
Mark S. Beckel
General Counsel
Country Villa Health Services (Los Angeles, CA)
Stephanie A. Griffin
Chief Compliance Officer
LaVie Care Centers (Tampa, FL)
Laura Lally
Vice President, Claims Management
Caring Communities Shared Services (Chicago, IL)
Kristine Morimoto
Vice President of Risk Management
Aegis Living (Redmond, WA)
Moderator:Norris Cunningham
Partner
Hall Render Killian Heath & Lyman PC (Indianapolis, IN)
Spotting the red flags from an in-house perspective that will impact litigation downstream
- Training and document retention strategies for nurses and other professionals who handle increasingly onerous paperwork requirements
- Credentialing procedures and policies to avoid inability to defend situations- Tips for mastering the excluded persons list process
- Heading quality of care cases off at the pass
- Combating staffing requirements claims through adequate supervision: a look at what staffing ratios have come under fire in recent class actions
- Doing more with less resources in light of the unprecedented 11% Medicare budget cuts
- Managing expectations when communicating with residents and families about sensitive emotional hot button issues about long term and end of life care
- Having a plan in place for coping with adverse outcomes
- Forming a social media policy to mitigate risk of litigation from communications by employees
- Structuring a unique compliance and insurance program based on the size of your organization
- The challenges and benefits of self-insurance
- Making the case against corporate liability: why the skilled nursing duty of care is a non-delegable duty
- Developing a good reputation and fostering positive public relations to increase favorable public perception pre-suit
9:45 Morning Networking Break
10:00 Prevailing Against the Latest Plaintiff s’ Claims: Emerging Strategies for Class Actions in the Nursing Home Context
Kirkman T. Dougherty
Partner
Hardin, Jesson & Terry, PLC (Fort Smith, AR)
James A. Napoli
Partner
Hanson Bridget LLP (San Francisco, CA)
Kippy L. Wroten
Founder and Shareholder
Wroten & Associates (Irvine, CA)
- Surveying recent class actions throughout the U.S.: has Lavender v. Skilled Nursing created a feeding frenzy?
- Using recent Supreme Court rulings to challenge class certification
- What does the Dukes case mean for long term care defendants?
- Tracking new trends in a still developing area of law
- Is staffing an individual right and if so, is it enforceable?
- Challenging the claimed “Well Defined Community Interest”
- Standing and class certification: exploring the individual analysis required to prove adequacy of care
- Survey of state statutes providing added rights and formulating arguments to block liability based upon them
- Protecting the Due Process rights of the long term care operator
- Attacking plaintiffs’ use of anecdotal evidence to breathe life into claims: the impact of Dukes
- Challenging the use of sampling and the use of licensing and certification documents
- Understanding the government’s rights and responsibilities under the mandates of the Administrative Procedures Act and ensuring government adherence to the statute
- Defense class actions: the next “offense”
11:15 Using New Science to Develop Winning Defense Strategies in Tried and True Areas of Liability: Medication Errors, Pressure Ulcers, and Falls Cases
W. Bruce Baird
Member
Gwin Steinmetz Baird, PLLC (Louisville, KY)
Bonnie-Lou Binnig, CHC
Chief Compliance Officer
Vanguard Healthcare Services, LLC (Brentwood, TN)
Ami L. DeMarco
Partner
Purcell & Wardrope, Chartered (Chicago, IL)
Mark B. Hartig
Founding Shareholder
McCumber, Daniels, Buntz, Hartig, & Puig P.A. (Eagleville,PA)
- Examining the new theories of liability plaintiffs are using in negligence cases against LTC and nursing home providers
- Survey of recent case law focusing on Florida, California, Louisiana and New York decisions
- Building a defense in a case alleging medication error
- How the signs of dementia or other cognitive decline can be confused with overdose
- Putting steps in place to avoid common medication errors and adverse drug interactions
- Understanding the clinical circumstances under which pressure sores are unavoidable to preclude a finding of liability
- Combating jurors’ sympathy when seeing graphic ulcer pictures
- Mounting an effective failure to thrive defense in an infectious disease or skin breakdown case
- Taking a realistic approach to the science of death
- Using the frequency of falls in the elderly to defend in a falls case
- When can a single fall constitute negligence?
- Determining who is at high risk to suffer a fall
- Instituting fall prevention plans
- Cross-examining nurse and clinical expert witnesses
12:30 Networking Lunch
1:45 – 3:45 Masters Level Trial Litigation Strategies: Forging a Bulletproof Defense Against an Increasingly Aggressive Plaintiffs’ Bar
1:45 Combating and Limiting Excessive Punitive Damages Awards Against Long Term Care Providers
Bradley L. Kelly
Founder
Law Office of Brad L. Kelly, P.C. (Bethesda, MD)
Richard M. Sebek
Shareholder
Banker Lopez Gassler P.A. (Tampa, FL)
- What is punitive conduct? Tips on rebutting Plaintiffs’ attempts to seek punishment for mere negligent conduct
- Stopping the trickle before it becomes a flood: Using the Rules of Civil Procedure to filter out improper claims for punitive damages
- Debunking expert testimony to bolster punitive allegations
- Tips for impeaching and discrediting plaintiffs’ experts
- Researching frequent testifiers and the tactics they are likely to take
- Diminishing the potential for jury verdicts rooted in aroused emotions in long-term care cases
- Recognizing attitudinal divides between plaintiff and defense oriented jurors in voir dire
- Challenging the plaintiff’s case through discovery and setting up the provider’s defenses
- Fighting the potential for an emotional response with the trier of facts through pre-trial motion practice with the trier of the law
- Avoiding shock value through the use of pictures
- Painting a picture of the plaintiff in a wrongful death case
- Debunking negative public perceptions surrounding widespread negligence or mistreatment in long term care facilities and nursing homes
2:45 Defending Charting Errors and Omissions: Going Beyond the Basics to Overcome Holes in the Chart
Paul W. McCartney
Partner
Rendigs, Fry, Kiely & Dennis, L.L.P. (Cincinnati, OH
Danny Newman
Partner, Co-Chair, Long Term Care Practice Group
Reminger Co., L.P.A. (Cincinnati, OH
John E. Wade
Member
Brunini, Grantham, Grower & Hewes PLLC (Jackson, MS)
- Using the chart as a whole to show evidence of good care
- The imperativeness of training nursing and medical staff to document properly and meticulously to prevent litigation
- Defeating the “it’s not my job” mentality
- Overcoming the mantra “if you didn’t chart it, you didn’t do it”
- Deflating jurors unrealistic expectations at trial by explaining standards of documentation in the medical field
- Arguments and exhibits to highlight time spent actually caring for patients
- Demonstrating that there is no such thing as a perfect chart
- Clarifying that a lack of notation may be an innocent omission and not evidence of negligence
3:45 Afternoon Networking Break
4:00 Minimizing Fraud & Abuse Risk in the Long Term Care Setting: Preparing for Unprecedented Scrutiny
Jason E. Bring
Partner
Arnall Golden Gregory LLP
Gabriel Imperato
Managing Partner
Broad and Cassel (Forth Lauderdale, FL)
In its 2011 action plan, the OIG has come out swinging against skilled nursing facilities. There will be increased audits for nursing homes and skilled nursing facilities to determine the quality and necessity of services rendered. Prepare to have your records reviewed with a fine-tooth comb and used against you in subsequent litigation, including civil and criminal prosecution, whistleblowers’ suits, and even class action suits.
- What sort of actions are being watched for False Claims liability or being deemed “worthless services”?
- Examining the rise in whistleblowers and government enforcement in the face of increasing scrutiny and oversight post-healthcare reform
- How plaintiffs are using the transparency provisions of the Elder Justice Act under healthcare reform to their benefit
- Defenses to show that billing is proper
- Determining whether providers are billing properly
- Has there been proper supervision?
- Managing relationships with employees in an area with high turnover to prevent disgruntled workers from turning into plaintiffs and whistleblowers
- Thinking beyond the medical staff:
- How social service workers, MDS, admissions, and activities staff can work for or against you
- Exploring the potential for criminal liability for directors and officers and other high-level long term care staff
- When does a civil wrong become criminal in this context?
5:00 Conference Adjourns to Day Two
DAY 2: WEDNESDAY, FEBRUARY 1, 2012
7:30 Continental Meet-and-Greet Breakfast
8:15 Co-Chairs’ Opening Remarks
8:30 View from the Bench: The Judicial Perspective on Litigating a Long Term Care Case
The Honorable Thierry Patrick Colaw
Judge, Superior Court,
Orange County (Santa Ana, California)
The Honorable James L. Robart
District Judge, U.S. District Court,
Western District of Washington (Seattle, WA)
The Honorable Keith J. Sickendick
Administrative Law Judge, Departmental Appeals Board,
Office of the Deputy Secretary,
United States Department of Health and Human Services (Washington, DC)
Moderator:
Barb Duffy
Partner
Lane Powell (Seattle, WA)
Do not miss this unique opportunity to learn from distinguished federal and state judges the legal theories and defenses they have found most effective when deciding a long term care case. Come prepared with your most pressing questions to get the most out of this session. Learn how to craft the arguments that will turn a long term care case in your favor.
10:00 Morning Networking Break
10:15 Securing and Enforcing Arbitration Agreements in the Face of Emotional and Legal Roadblocks Specific to Long Term Care
Christy Tosh Crider
Shareholder and Long Term Care Practice Group Leader
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Nashville, TN)
Donna Fudge
Partner
Fudge & MacArthur (St. Petersburg, FL)
Bonnie Helfgott Krisztal
Corporate Counsel
Extendicare Health Services, Inc. (Milwaukee, WI)
Leonard Milcowitz
Arbitrator
Milcowitz & Lyons, P.A. (Clearwater, FL)
- Drafting arbitration agreements that will comply with both state and federal arbitration law requirements
- Minimizing the risk of litigation through proper formatting
- Can states do an end run around the FAA?
- Selecting an arbitrator who understands the emotional and legal issues specifi c to long-term care and elder law
- What do arbitrators find beneficial?
- Explaining the benefits and process of arbitration to families
- Training nursing home admissions staff on offering arbitration to families
- Touting the benefits: Privacy, flexibility, and limited expenses compared with trial
- The resident’s right to opt out
- Understanding how the Congressional movement to remove arbitration agreements standard to most large chains will change the face of the industry
11:15 In-House Think Tank Session II: Proactively Preventing Costly Litigation and Strengthening the Provider Defense
Caroline J. Berdzik
Assistant General Counsel
Care One, LLC (Fort Lee, NJ)
Timothy J. Cesar
Vice President of Legal- Litigation
Brookdale Senior Living (Milwaukee, WI)
Theresa Creagh
General Counsel
Grane Healthcare (Pittsburgh, PA)
Shannon Drake
Assistant General Counsel
UHS- Pruitt Corporation (Norcross, Georgia)
Lynn Fieldhouse
Associate General Counsel- Litigation
Signature Healthcare (Louisville, KY)
Jeffrey T. Royer
Former Associate General Counsel- Litigation Group
HCR ManorCare (Toledo, OH)
Beverly B. Wittekind
Vice President and General Counsel
The Ensign Group (Mission Viejo, CA)
Moderator:
William J. Mundy
Member
Burns White LLC (West Conshohocken, PA and Cherry Hill, NJ)
- Choosing and working closely with outside counsel in litigation
- What criteria are providers using to select outside counsel to represent them?
- Forecasting a realistic budget to work within despite spiraling litigation and insurance costs
- The big picture: harmonizing the efforts of the client provider, law firm counsel, and insurance defense attorneys while protecting individual interests
- Exploring alternate dispute resolution: how to make the determination when arbitration or mediation is the best recourse for a nursing home dispute
- Case studies: success stories of defense techniques that providers have used when being slammed on civil and criminal suits stemming from one claim
- Effective defenses to corporate liability claims
- Choosing a corporate representative to be your face at trial
- Preparing medical staff to answer questions at deposition and trial
12:30 Conference Adjourns for Networking Lunch for Mock Jury Participants
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