Your Internal Incident Investigation: Laying the Groundwork for Defense Against Claims

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The best time to thoroughly investigate an incident is immediately after it occurs.

In many instances, the successful defense of a claim depends on the quality of the healthcare facility’s internal investigation because it often happens before we are made aware that an incident has occurred.

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Can Security Surveillance Cameras Tell A More Complete Story?

While a healthcare employee can't be on the scene at the time of all incidents, the popularity of security cameras makes it more likely that there will be an “eye-witness” to the event.

Always “go to the videotape” as soon as possible once you are notified of an incident to see if it was captured by the camera. If the area or alleged area is in view of the camera, you should save a copy of a portion of the time frame that includes a reasonable period both pre-and post-incident.

We include the phrase “alleged area” because the video can also prove nothing occurred or that it did not occur where the claimant says it did.

In one of our recent general liability claims, the claimant’s husband provided photographs, including measurements of a significant difference in height between two sections of sidewalk, to allege the environmental defect was the cause of his wife’s fall. On the contrary, the fall was caught on camera showing that the fall actually occurred well before the area of the defect where there was no unreasonable hazard.

In another case, a family member was walking with a patient as they entered a healthcare facility’s lobby. The patient was walking with a cane. As they entered, the family member tripped and fell.

She alleged that one edge of the mat at the entrance had been left “turned up,” creating an unreasonable hazard that caused the fall. The surveillance footage showed that the patient’s cane is what caused the edge of the mat to turn up as she entered. As a result, proof existed that the healthcare facility had no time to have constructive notice of a hazard. The video was provided to the claimant’s attorney and the claim was dropped.

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Witnesses: Collecting the Right Information

Inquiry into possible witnesses is one of the most important aspects of an incident investigation that often goes overlooked. Countless times, we have learned about the existence of a witness months - even years - after the fact during a deposition. The quality of a witness statement decreases with age. The farther from the date of the incident, the less clear a witness memory will be.

When an incident occurs:

1. Canvass a reasonable area surrounding the incident scene. Ask people in the area if they might have witnessed (or know someone who may be a witness to) the event – both employees and non-employees.
2. Obtain comprehensive information about the witness’s version of the facts as well as all pertinent contact information such as name, address, date of birth, social security number (but don’t push if they are uncomfortable about providing it), phone number(s), email address, employer, and the best person to contact if you are unable to get a response from the witness.

An objective witness, defined as neither a hospital employee nor a relative/friend of the claimant, will provide the most credible testimony.

Many years ago, we received a medical malpractice claim alleging that an Emergency Department patient was not triaged properly and his serious medical condition - a stab wound - was unnecessarily delayed or ignored. The claim alleged the patient was forced to leave and go to another healthcare facility, resulting in a worse outcome than if he had been treated sooner.

Fortunately, the healthcare facility’s security guard report included the contact information of two people who were in the ED waiting room at the time. These witnesses attested that the patient was uncooperative with - and abusive to - the ED medical staff who attempted to assist him. They overheard the patient and his companion discussing the need to be treated quickly before police arrived. They also corroborated the healthcare facility’s documentation that the injured party was only in the ED for about 20 minutes before leaving.

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Why the Claimant’s Attire and Accessories Matter

Pay special attention to the type of footwear worn by any claimant alleging a trip or slip. Ask if an alleged fall victim was carrying anything at the time. Was there anything distracting the claimant, like a cell phone, so they were not paying attention to their surroundings?

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Photographs: Cover All Angles

Pictures of the incident scene as soon as possible after an incident occurs can provide an even “closer up” view. A photo that includes the time and date that the picture was taken is even better.

In cases like the one above where there was a difference in height between two sections of sidewalk, we have had claims where hospital personnel took a photo of the level discrepancy, including a ruler or tape measure to show the exact height difference. That information is vital because numerous court opinions have conceded that height differences of up to two inches are not unreasonable and that it would be impossible for any business that encompasses a significant area to keep the property entirely free of minor environmental defects.

Keep in mind that, just as video and photographs can aid in defending claims, they can also prove that a healthcare facility does have liability exposure. In those cases, attempts can be made to resolve a claim quickly to avoid lengthy and expensive litigation.

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Statements Against Interest

Document, in quotations, any statements made by anyone, especially the claimant, that are averse to the claimant’s liability allegations and are made at/in close time and proximity to the event. Such statements could be admitted evidence in exception to hearsay rules.

A “Statement Against Interest” is defined as “a statement made by a person which places them in a less advantageous position than if they had not made the statement and is, as a consequence, deemed credible as evidence.”

Once a claimant has retained legal counsel, our experience tells us that they will almost always deny having made such statements. Verbal testimony to the contrary will not hold up in court nearly as well as statements properly documented at the time of the event.

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Product Sequestration and Bio-Med Assessment

Numerous claims defended by LHA Trust Funds over the years allege defective equipment- lasers, MRIs, cauterizing agents, sterilizing autoclaves, stretchers, wheelchairs, and more.

Any type of equipment, be it a medical device, piece of furniture, or another item, that is the alleged cause of or a pertinent piece of evidence associated with a claim, should be tagged. It should then be taken out of regular use and sequestered with documentation of the chain of command detailing the process from the location/time of incident to the final location of sequestration.

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Summing It Up

These elements can all prepare your healthcare facility to conduct a thorough internal incident investigation. While our claims experts will also investigate, your facility has the first and often best chance to lay the groundwork for a successful defense.

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About The Authors

Stan Strasner, Senior Claims Consultant, has more than 32 years of experience handling multi-line claims in the areas of general liability, workers’ compensation, cargo, and property. His experience comes as a former staff Consultant for Maryland Casualty and Zurich where he handled multi-line commercial property and casualty claims. In addition, he has serviced self-insured risks and has the related experience necessary for reporting to excess carriers. Immediately prior to joining the HSLI claims staff, he was a branch manager for a national independent claims company where he had the responsibility of supervising consultants and support staff, along with the daily operations of the branch office. Mr. Strasner has a Bachelor of Arts degree from Louisiana State University.

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Mike Walsh is an AIC and CPCU-credentialed professional with more than three decades of experience in insurance claims, primarily in medical malpractice. As Liability Claims Manager for LHA Trust Funds, Mr. Walsh heads a team of senior claims consultants who investigate and assist in the resolution of claims. Mr. Walsh also works closely with hospital administrators, risk managers, safety officers, and clinical staff to help them identify and address potential liability issues.