Advanced Legal Planning

We live in an amazing country! The United States is a world leader in most critical areas, including aerospace, technology, science, medical care, and so much more; providing unparalleled service and making our world a better place. While we are at the top of the food chain in so many important areas, we also unfortunately excel at something that regularly challenges businesses and their ability to succeed. Something that requires material advance consideration in the regular day-to-day operations of your addiction treatment facility. Our nation’s general propensity to resort to litigation, on matters both large and small, is a constant drain, serving as a major impediment in the costs of doing business.

Litigation costs are so invasive that most large companies include it as a regular line item in their financial statements. Many of them book contingent losses in advance as a “future liability” to ensure compliance with financial regulatory agencies. It drives up the cost of insurance, requires considerable additional staff time, and eats up resources that could otherwise be better allocated. Yet, it is a regular part of everyday life and most businesses have learned how to cope and still earn a profit. That, in turn, can lead to complacency, both in terms of lack of cost management and lack of general preparedness. That’s why it’s vital for every company, and particularly those of us in the addiction treatment industry, to develop best practices to minimize risk and maximize profits.

Any given day, there’s a possibility you may be sued for alleged malpractice errors or mistakes, arising from your performance (or non-performance) of professional services. As an owner-operator or medical professional, you can be held accountable for all staff, from on-call psychiatrists, down to the techs who perform most of the ordinary functions of the facility.

If you wait to plan for the worst, then it is already too late. In a recent headline case, the owner of a California detox facility was charged with manslaughter when a patient died in the care of his facility. The charges were eventually dropped because he had the proper administrative controls in place. Had things been otherwise, the results could have been personally catastrophic. It’s critical that you have a thorough strategy in place to help you circumnavigate avoidable pitfalls.

The next thing to do is immediately notify your attorney so he is aware of your situation. He is the ONLY person with whom you can speak confidentially about the entirety of the situation. Be honest and give him all the facts, so he can give you the best possible advice in protecting your interests. In most instances, your attorney’s costs will be covered by your insurance policy, but even if that’s not the case, this is not time to pinch pennies. The cost of mistakes or of doing nothing far exceed whatever the attorney might cost you.

Contacting your business liability insurance company is the important step that follows. There is typically a small window of time in which the insurance company must be notified, and that’s why contacting your attorney ‘immediately’ is so vital. Your claim can be rejected if your notice is not filed both timely and correctly. You’ve paid a lot of money in premiums to specifically cover these types of scenarios. Be diligent and make this a priority to get your defense started on the right track.

Attorneys & Compliance
So, before we get started with the details of what to do when you’re faced with a lawsuit, let me start by suggesting you hire a compliance officer, either full-time or as a consultant, and retain an attorney now. If you already have them…great. The compliance officer should review your clinical practices; help revise and update your Policies and Procedures (which should be memorialized in a manual) and even help with accreditations like The Joint Commission or CARF International. Some experts in the field include Cassandra Sierra, Linda Potere, and Darlene Silvernail. The attorney, in turn, should do a compliance audit and provide you with a legal opinion. Being proactive to demonstrate your practices in advance will go a long way towards blunting potential claims of negligence or other liability to begin with. As they say, an ounce of prevention is worth a pound of cure. With that now in place, let’s review a step-by-step strategy for minimizing the impact of any lawsuit.

The first thing you need to do is remain calm. Acting out of panic, frustration or anger, is a recipe for disaster. We live in a litigious society, lawsuits (both legitimate and frivolous) are brought every single day. There’s nothing you can do to immediately resolve the situation; you’ll need to let the process play out. So, don’t make yourself crazy and start awfulizing about what ‘could’ possibly happen. It’s an exercise in futility. Things will work out just fine, just be patient.

Do not discuss your claim with anyone but your attorney – and I mean ANYONE. Anything you discuss away from your attorney is no longer confidential. It will be extremely tempting to seek out advice from trusted friends or colleagues, or to blow off some ‘steam of frustration’. Don’t do it! As the saying goes, ‘it can and will be used against you’. It’s just not worth it.

Along those lines, also be careful not to make any self-incriminating statements. This might be a subtle distinction from not discussing the case, but it is important for its own reasons. There are other issues regarding the operations of your facility that pop up all the time. The plaintiff in discovery will be sifting through all your files and emails with a fine-tooth comb. Be mindful of that and you can eliminate serious potential headaches. For example, never send an email or comment on a file with something like “we really screwed this one up”. It may seem quite logical now, but we are often less restrained in the heat of the moment. Preparing in advance ensures that a cooler head prevails.

Never Talk to Any Government Agency or Official Without Your Attorney Present!

Let me repeat that to make sure I have your attention, because IT IS that IMPORTANT. Never talk to any government agency without your attorney present. No matter how tempted you are to clear the record, it is vital that you reserve your rights. You may think you can talk your way out of the situation or deflect, but you are likely doing yourself more harm than good. It’s just not worth it.

Do not destroy any documents. This may be difficult to resist. You find something perceivingly damning and want to eliminate it. Destroying documents will only ensure that it is deemed in the most negative light possible. What you are trying to avoid is exactly what you cause to occur. Your attorney will likely be able to explain that document in its most positive light and put a better spin on things than you imagine. Destroying documents can also lead to charges of contempt and anger the judge. That’s the last thing you need.

Otherwise, go about your regular business and ignore the litigation. You cannot let a simple lawsuit undermine your operations. These things can take years to litigate and most eventually settle with a payout from your insurance carrier. No single lawsuit will drive up your premium or cause material harm to your business. Sure, you ideally want to avoid racking up several in a short time frame, but that’s no different from how you operate your business in general. Avoid negligent and shoddy business practices and this nuisance, like all other business issues, shall soon pass.

Litigation is a part of life in the US and we’ve all come to accept that. If left unplanned for, it can be a huge inconvenience and cause chaos within your organization; well planned for, it can be easily handled, a minor speed bump on the road of life, allowing your business to thrive as if nothing ever happened to begin with.