Better claims management
through preservation of evidence:
why it's vital in protecting your legal position

Thilman Filippini guidelines for managers and executives of seniors housing communities

By Mary Lynn Curran, RN MS CPHRM
Thilman Filippini Seniors Housing Division

Preserving evidence isn't just something that police or forensic investigators do. It's a must for management whenever an untoward incident or injury occurs.

How important is preserving potential evidence? Consider this scenario:

As she stands up to hug her visiting granddaughter, an assisted living resident's wheelchair inexplicably collapses under her weight. The resident is rushed to a nearby hospital with a shattered left wrist and two cracked ribs from the resulting fall. The next morning, her daughter phones the wheelchair manufacturer to bitterly complain. Within 24 hours the manufacturer retrieves (and scraps) the wheelchair, replacing it with a new one.

The daughter's next call is to her lawyer, regarding a potential suit.

Any professional investigator would cringe at this turn of events. More important, so would a corporate defense attorney.

Because this wheelchair was potentially the direct cause of the resident's injury, it should have been "preserved as evidence" for a possible liability case against the manufacturer. Without this evidence – preserved as is – the resident's community may now be held totally responsible.

Thanks to the popularity of Court TV and several prime-time "crime scene" dramas, we know that even the most elaborate criminal or civil case can hinge on one simple, seemingly mundane piece of evidence: a shoelace, a scrap of uneaten food, a fiber.

But the most fundamental step of any investigative or legal process is preservation of all potential evidence pertaining to an accident or scene of alleged wrongdoing. This can include clothing, equipment, vehicles, furniture, documents, fluids – virtually anything.

Investigators say the best of rule of thumb is to keep the scene of an incident exactly as it is until professionals have thoroughly examined, inventoried, photographed and documented the area. Touch or move nothing. In seniors housing, particularly, preservation of evidence is Step One in an investigation following an injury of a resident, staff or visitor.

Here are other examples of situations where preservation of evidence is critical in a seniors housing investigation process.

• Accusation or allegation of sexual abuse. Action: Lock or cordon off the apartment or area. Let no one touch anything until a police investigation ensues.
• Suspected food poisoning. Action: Preserve samples of food materials suspected of being tainted. The local or state health department will advise on procedures. Place distributors and vendors on notice anytime food poisoning is suspected. Document each of these steps.
• Fall or injury involving an automatic door. Action: Obtain the services of a third party – neutral, objective and qualified – to examine the function of the door and document the findings, along with photographs.
• Resident's record is altered by caregiver following significant incident. These situations are tragic and can be avoided with early warning systems in which significant injuries or illnesses are reported – immediately – through the chain of command. Action: The assisted living director or executive director, while managing the situation, should inspect a resident's records and safeguard them by keeping the originals and having caregivers continue their documentation on copied records.

Equipment such as ladders, steam tables, refrigeration doors, alarm systems, elevators, scooters, etc. are usually owned and maintained by seniors housing organizations. If any of these are involved in an injury, strongly consider preserving them from being repaired, tampered with or returned to a manufacturer until consultation with your corporate risk management person and insurance advisor.

The rationale behind these steps, although inconvenient, is that the cause of the accident or injury may be the design, assembly, integrity, maintenance or vintage of the product or equipment and, therefore, fault may appropriately rest with the manufacturer. But without "preserved evidence," proving this may be difficult.

If it is impossible to take a piece of equipment out of operation (e.g., an elevator), carefully document what is observed and take pictures of the product or incident scene. An item such as a ruler or pack of cigarettes should be placed in the photograph so as to clarify the size and scale in the photos. Always date and time the photograph if the camera does not automatically do this.

In summary, Preservation of Evidence should be a standard risk management policy or part of an investigation guideline. Simply stated, this means:

All equipment, products or materials – whether owned, leased or on the premises – should be preserved, protected, isolated or cordoned off without repair, rearrangement or any type of alteration until next steps have been determined by the risk manager.

Items which may be considered evidence include:

1. Resident records, including move-in documents, correspondence, agreements, addenda to the agreement, and any medical records such as documentation from assisted living or the care center.
2. Photographs
3. Safety devices, walking devices, propelling devices used by residents
4. Equipment – both resident and property related
5. Mechanical devices
6. Ventilators
7. Whirlpool
8. Electrical equipment
9. Electric beds
10. Shower chairs
11. Medications and their containers
12. Records such as laboratory tests, x-ray results, physician orders, pharmacy records
13. Statements by others such as witness statements or letters.
14. Files of third parties such as healthcare providers (medical director, podiatrists, home health agencies, hair dresser) including contracts and certificates of insurance.
15. Files of third party maintenance or repair services (alarm maintenance, lawn maintenance, elevator maintenance, sprinkler maintenance) including contracts and certificates of insurance.
16. Internal documents such as
    • committee meeting minutes
    • stand up meeting documentation
    • log books and communication books
    • resident care meetings
    • training records
    • employee files
    • employee applicant files
    • security video film

The following is a quick-reference for what should and should not take place when preserving evidence, especially when the incident involves equipment:

Do:

1. If incident is significant, call corporate.
2. Complete an incident report form; begin an investigation file.
3. Take item out of service or cordon off from use.
4. Tag and date item to identify it, e.g. 11/1/04 Mrs. S. Smith's wheelchair.
5. Document serial number and model number.
6. Protect the item from tampering, repair or leaving the community.
7. Call risk management for guidance on notification to the manufacturer.
8. Review and maintain all service/maintenance records, leases and sales agreements.
9. Record the following in the investigation file for all equipment:
   1. Name of the manufacturer, supplier and sales organization (vendor).
   2. Serial number, model number and lot number.
   3. Age and condition of item.
10. Request approval from the risk manager before allowing anyone to inspect or look at the equipment.

Do Not:

1. Change settings, dials or alter the equipment in any way.
2. Make any repairs to the unit.
3. Return the unit to a salesperson, vendor, supplier, manufacturer or put back in operation.
4. Discard the evidence or any collateral information regarding the evidence or unit.
5. Discuss the evidence with anyone outside the scope of the internal investigation.
6. Allow access to the equipment by anyone who has not been approved by the risk manager or general counsel.