BENEVOLENT GESTURE MEDICAL PROFESSIONAL Robert A.
BENEVOLENT GESTUREMEDICALPROFESSIONALLIABILITY ACT:WHAT IT MEANS FORLONG TERM CAREPROVIDERSRobert A.Evarts,EsquireKennedy, PCLaw Offices
AGENDA1. The Act2. Who can offer a benevolent gesture?3. To whom can a benevolent gesture beoffered?4. What constitutes a benevolent gesture?5. When can a benevolent gesture be offered?6. What should you do?7. Conclusion and Questions
THE BENEVOLENT GESTURE MEDICALPROFESSIONAL LIABILIT Y ACT Passed unanimously through the House andSenate with bipartisan support Applicability – applies to actions commencedafter December 23, 2013 Championed as a type of medical tort reformintended to encourage frank discussionsbetween health care providers and recipients,families and representatives
THE BENEVOLENT GESTURE MEDICALPROFESSIONAL LIABILIT Y ACT What is it? An evidentiary rule that places limits on the generalrule Rule 402. General Admissibility of RelevantEvidence All relevant evidence is admissible, except asotherwise provided by lawTHE ACT CREATES AN “AS OTHERWISE PROVIDED BYLAW” EXCEPTION TO THE RULE
THE BENEVOLENT GESTURE MEDICALPROFESSIONAL LIABILIT Y ACT If a health care professional offers abenevolent gesture made prior to thecommencement of a medical professionalliability action, administrative action,mediation or arbitration, it is inadmissible asevidence of liability The benevolent gesture can be still beadmitted in court, but it can’t be used asevidence of liability
WHO CAN OFFER ABENEVOLENT GESTURE? Physicians Hospitals Nursing Homes Assisted Living Facilities Personal Care Homes Birth Centers Certified Nurse Midwives Officers of facilities Employees of facilities Agents of facilitiesActing in the scope andcourse of employment
WHO CAN OFFER ABENEVOLENT GESTURE? Open questions: What is an Agent? What about nurse practitioners? If a physician/officer/employee/agent sayssomething that is not protected, does that implicatethe facility?
TO WHOM CAN ABENEVOLENT GESTURE BE OFFERED? Patient/Resident Patient/Resident’s relative Patient/Resident’s representative designatedto make medical decisions under a healthcare power of attorney.
TO WHOM CAN ABENEVOLENT GESTURE BE OFFERED? The Act defines “Relative” as:1. Spouse2. Parent3. Step-parent4. Grandparent5. Child6. Step-child7. Grandchild8. Sibling9. Half sibling10.Spouse’s parent11.Any person who has a “family -type” relationshipwith Patient/ResidentNOT CLEARWHETHER ITAPPLIES TOSAME SEXPARTNERS
WHAT CONSTITUTES ABENEVOLENT GESTURE?ACTION, CONDUCT, STATEMENT OR GESTURETHAT CONVEYS A SENSE OFAPOLOGY, CONDOLENCE, EXPLANATION, COMPASSIONOR COMMISERATIONEMANATING FROM HUMAN IMPULSES
WHAT CONSTITUTES ABENEVOLENT GESTURE?Action, Conduct, Statement or Gesture Can be anything from a hug to a sympathy cardApology, Condolence, Explanation, Compassionor Commiseration Explain - Empathize
WHAT CONSTITUTES ABENEVOLENT GESTURE?THE BENEVOLENT GESTURE MUST PERTAIN TO THERESIDENT’S DISCOMFORT, PAIN, SUFFERING, INJURYOR DEATHANDRESULT FROM ANY TREATMENT, CONSULTATION, CAREOR SERVICE PROVEDED OR OMITTED BY THE PROVIDER
WHAT CONSTITUTES ABENEVOLENT GESTURE?DISCOMFORT, PAIN, SUFFERING, INJURY ORDEATH MUST RELATE TO THE RESIDENT’S HARMTREATMENT, CONSULTATION, CARE OR SERVICEPROVIDED OR OMITTED MUST RELATE TO THE CARE PROVIDED BY YOU
WHAT IS NOT A BENEVOLENT GESTURE? A Benevolent gesture does not apply tocommunications, including excited utterances,that also include Statement of Negligence orFault pertaining to an accident or event
WHAT IS NOT A BENEVOLENT GESTURE?STATEMENT OF NEGLIGENCE OR FAULTDO NOT FALL ON YOUR SWORD!!!
WHEN ARE BENEVOLENT GESTURESCOVERED UNDER THE ACT The Act only protects benevolent gesturesmade prior to the commencement of legalaction (e.g. professional liability action,administrative action, mediation orarbitration) Vital that benevolent gestures are made assoon after the adverse event as possible toensure it is covered under the act.
WHAT SHOULD YOU DO? Train you staff in: What can they say What should they say or do To whom they can say itTHE DIFFERENCE BETWEENEMPATHY AND APOLOGY!
WHAT SHOULD YOU DO? What can your staff say or do? They can express empathy They can send a sympathy card or note They can meet with the family and/or residentEMPATHY IS ALWAYS OKAY!
WHAT SHOULD YOU DO? What should your staff not say? Blame someone else Complain about staffing, conditions, bosses,coworkers Joust with the family/resident SpeculateDO NOT ADMIT FAULT UNTIL IT IS THE APPROPRIATE TIME!
WHAT SHOULD YOU DO? Who should your staff speak with? The resident and the family The health care agent under a POANo Hiding!!!!
WHAT SHOULD YOU DO? Learn the difference between Empathy and ApologyAPOLOGY is taking responsibility for the event Only to be used after an investigation has beencompleted and it demonstrates that you are at faultONLY APOLOGIZE WHEN IT HAS BEENDETERMINED THAT THERE IS FAULT!
WHAT SHOULD YOU DO?EMPATHY is connecting with the resident and family –Demonstrates that you understand how they feel andyou feel sorry for them Good to use for both small and more serious eventsEMPATHY IS ALWAYS GOOD ANDWELCOME!!
SOME EXAMPLES OF EMPATHY1. I’m sorry your food is late. I will get your food and bring itright to you.2. I’m sorry your father is having a hard time getting used tohis new home. Let’s figure out how we can all work togetherto make the transition smoother.3. I’m sorry your mom passed away after she fell. We feelhorrible for you and your family. We are going to learn howthis happened. We will give you an update at 3:00 tomorrowafternoon. In the meantime, is there anything we can helpyou with right now? Do you need a minister or a counselor?Again, we are very sorry and you have our deepestsympathies.
SOME EXAMPLES OF APOLOGY1. I’m sorry I got delayed delivering your dinner. I didn’t startmy deliveries on time and I will make sure it won’t happenagain.2. I’m sorry your father fell and is in the hospital. After welooked into the situation, we learned that he was getting outof bed to go to the bathroom when he fell. He said heneeded to use bathroom but couldn’t reach his call bell.That is not our standard of care and we are retraining all ofour staf f to make sure that the call bell is always in reach ofour residents. I’m sorry that this happened. We acceptresponsibility for his fall. Is there anything we can help youwith now?
SayingSORRYis always okay!
QUESTIONS
Since 2001 , Kennedy, PC Law Of fices has been providingexceptional and af fordable legal services to the long term careprovider community. Because of our highly focused practiceareas, our clients enjoy personal attention backed by extensiveexperience. From large organizations traded on the New YorkStock Exchange to government owned facilities to smallorganizations, we represent clients the way they expect anddeserve to be represented.For more information, please contact:Robert A . Evarts(717) 233-7100 ext. 116revarts@kennedypc.net
Can be anything from a hug to a sympathy card Apology, Condolence, Explanation, Compassion or Commiseration Explain - Empathize WHAT CONSTITUTES A BENEVOLENT GESTURE? THE BENEVOLENT GESTURE MUST PERTAIN TO THE RE
Preliminary draft . Benevolent Autocrats. 1. William Easterly . NYU, NBER, BREAD . May 2011 . Abstract: Benevolent autocrats are leaders in non-democratic polit ies who receive credit for high growth. This paper asks two questions: (1) do theory and evidence support the concept of "benevolent
(Edwards, 2005). Also evident were gesture episodes which appeared to correspond to gestures identified by Rasmussen et al. (2004). In addition, further gesture types were observed and five have been described in detail below. Relationship Gesture Expression of the rela
York, Inc., Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, and Detectives’ Endowment Association (“Petitioners” or the “Unions”), by and through their undersig
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have been widely used in vision based gesture recognition (Dardas, 2012). The proposed multi-layered gesture recognition falls into the appearance based methods. 2.1 Feature Extraction and Classi cation The well known features used for
Variations: None 2. 2. Rubber-Band Selection . theme of the books in a library, the genre of music in a collection, the variety of crops in a location, the categories of archeological specimens found in a site. Usability: This gesture has the same properties as Half Plane gesture, with addition of the ability to select a more specific region. .
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