Relationships Can Prevent Litigation Even in the Face of Bad Outcomes
Oct 8, 2021

As many of you know, I was born and raised in Massachusetts. A week or so ago, Governor Charlie Baker announced that Massachusetts would re-open on May 29, 2021, COVID having been sufficiently vanquished to allow businesses, restaurants and sporting venues to reopen.

 

The news that Massachusetts was re-opening made me reflect on the past 14 months and what a long road it has been. My mother turned 92 on March13, 2020, the same day that the Boston Marathon was postponed from April 20 to September 14, 2020 - it never happened in 2020 and was cancelled again this past April - and the same day Governor Baker banned gatherings of more than 250 people. She suffered from dementia, predominately with short term memory, and she lived in a memory care unit at an assisted living facility in Massachusetts.

 

My mom never wanted to move into assisted living. She fought the decision at the outset and would often tell me that “she was ready to go home” when I visited her. Over time though, she grew to appreciate her living situation and, when her guard was down, she would tell me how nice the people were and how many friends she had made.

 

I was trained as a litigation attorney and I have been managing litigation against healthcare practitioners and facilities, including assisted living facilities, for the past 27 years. Hence, I was obviously very attentive to how staff interacted with my mom, how she was treated and how the organization kept me informed of her needs and conditions. Was it always perfect, no - but I always felt from the managing director on down, everyone’s goal was to make the residents’ lives better on a daily basis....and then COVID hit.

 

Who had greater challenges during COVID than the senior living industry? I was very impressed with the actions taken by my mom’s facility. It had very few infections during the first 6 months of the pandemic. While it was painful to not be able to visit my mom, the actions taken by the facility were sound and they kept the residents safe. Last fall, they began allowing scheduled visitation with masks and social distancing. My mom would tell me: “take off that damn mask, I can’t understand a word you are saying”, but we muddled through and she stayed healthy.

 

In mid - December 2020, news of the vaccine’s arrival came and I very happily signed the consent form for my mom to be vaccinated. I remember thinking at the time, what a great Christmas present this vaccine will be for her and I began allowing myself to think about the day in the not too distant future when I would be able to take her out for lunch or dinner. Unfortunately, that day would never come.

 

On December 19, 2020, my mom tested positive for COVID. The facility called and told me that certain staff members had contracted COVID, that all residents were tested and that my mom was positive, albeit with minimal symptoms. I spoke with her daily thereafter and for the first few days she said she was just tired. When I spoke to her on Christmas Eve morning, I could tell that she was not herself. I called a nurse practitioner to go to the facility to examine her and her oxygen levels were in the low 80’s. She was admitted to the hospital on Christmas Eve and she passed away on December 29, 2020. I had to make the difficult decision to move her to palliative care on December 28, and once that decision was made, the hospital was going to allow me to visit her. Unfortunately, she died before my flight on the 29th.

 

Like most people who lost a loved one to COVID, I was initially very angry. Nobody should die alone in a hospital. My mom never really understood what was happening to her because of her dementia and I know she must been very scared those last few days. By the time she was admitted to the hospital, it was simply too late for any heroic medical measures, like platelet transfusion.

 

In my anger, I began to think as a litigator and to consider whether the facility was negligent in not having her seen by medical staff sooner or by not having her sent to the hospital earlier. And then I remembered how kind the staff had been to her over the years and how impressed I had been about the measures the staff took to protect the residents through all the many months before. Most importantly, the facility had been completely transparent with me about what had occurred and the staff was truly saddened by my mother’s passing.

 

My personal experience is not unlike what happens to people every day, whether it is in an assisted living facility, a hospital or clinic or a doctor’s office. I have long believed that money is not what motivates an individual to initiate litigation; rather litigation the quest for an answer to why a situation occurred coupled with a desire to ensure it doesn’t happen to another person. My mother’s experience confirmed these truths for me and enforced that risk mitigation begins on day one of a provider and patient/resident relationship and the trust that is built over the course of that relationship is what sustains it when mistakes or bad outcomes occur.

 

Thanks mom for teaching me a final lesson. I love you and I miss you.

 

Rob Blasio is Managing Director of Gallagher Bassett Specialty, an operating division focusing on high-risk liability areas including healthcare. Rob has over 30 years of experience. You can find him on LinkedIn.

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