I work for an organization that works with individuals with developmental disabilities. We maintain confidential files which contain medical, psychological, social history type information, among other things. My question is this: A client lives w ...

Submitted by rparks on

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I work for a day program that works with individuals with developmental disabilities. We maintain confidential files which contain medical, psychological, social history type information, among other things. My question is this: A client lives with his family. They take him for all doctor appointments, medical follow-up, etc. If a relative brings us copies of physical exam forms, prescriptions or doctors orders for his family member who is receiving services, is that organization responsible in any way for following through with the orders contained in the prescription? Do we, as an organization, have any liability for making sure anything in those orders/records is performed? If a family member refuses to follow through with some part of the orders, do we, as an organization, have any responsibility or liability in making sure the action desired by the doctor is completed?

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DakotaLegal's picture

That’s a very important

Submitted by DakotaLegal on

That’s a very important question, as more and more laws require everyone (regardless of a disability) to be allowed more equal rights to community access. It’s such a big issue that the federal Department of Human Services has a general guide on major liability issues: http://aspe.hhs.gov/daltcp/reports/cdliab.htm.
 
This all has had the result of requiring more agencies and workers, with a corresponding need for more state licensing. Workers now make crucial, life-affecting decisions: adding to liability. It’s especially true in these three areas: (a) state licensing, (b) contracting, and (c) and crucial health care that means “liability” for making mistakes (or having some aspect of care ignored). It all adds up to saying “Yes,” there might be liability. And not only “liability” for the agency, but potentially for individual workers.
 
The ADA means there is potential civil liability, too: http://www.ncbi.nlm.nih.gov /books/NBK11429/.
 
You also need to look at some of the general rules about liability under what’s called Tort law, and the meaning of “negligence.” Torts are different from “laws,” because they aren’t necessarily written down in a statute or regulation. As a general idea, think of negligence as being in three parts: (a) a duty you owed to a particular someone, (2) failing to meet that duty, and then (3) some harm by you to that particular someone. To be liable, each of these three things has to be present. If you can excuse any one of these three factors, then you shouldn’t be liable.
 
But the negligence system isn’t perfect and juries sometimes make really bad decisions. And negligence under “tort” isn’t the only way you can be held possibly liable. This is especially true in the situation you described, where there are also care relationships between your agency (and workers) and other care providers. What happens when the big mistake is made by someone you work with? An example can be medical: someone administers the wrong drug, and your staff didn’t notice a change in behavior, resulting in some harm to a third person. In that case, negligence liability can be replaced by what’s called strict liability…if there’s a law on Georgia’s books about a duty of a care provider to third parties, your liability risk goes sup.
 


  • The Importance Of Professional Licensing

 
Every state now routinely licenses all day care or wrap-around service facility (such as an adult workshop) and workers for those who work for people with disabilities. Breaking these license rules add up to liability.
 
We’d briefly discussed, above, the possibility of strict liability…where your agency may be charged with failing to meet some law. Try reviewing Georgia’s DHS “Out of Home Care” department for tips… https://www.gascore.com/content/page .cfm/8/ resources_for_providers.
 

  • Shielding Your Agency and Staff From Unnecessary Risks

 
Because there’s almost always some “contractual” element involved here, there’s a chance that your agency can also limit some liability in these cases, too. The idea there is to have a contact spelling out who is liable for what.
 
Have workshops on areas of legal liability. Let the staff know they also may bear some risks for bad decisions and non-disclosure of risk or dangers. One way to review liability is to look at your organization’s business structure. A corporation or LLC might be a way to lower your liability. Reviewing how you hire employees or sub-contract with workers as Independent Contactors may help, too. Two places you can get some combined business/planning advice would be through a group of the Service Corps of Retired Executives (SCORE)… http://atlanta.score.org/node/146721 (which is free), or through the Georgia Bar Pro Bono service… http://www.gabar.org/publicservice /volunteer.cfm.

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DakotaLegal's picture

That’s a very important

Submitted by DakotaLegal on

That’s a very important question, as more and more laws require everyone (regardless of a disability) to be allowed more equal rights to community access. It’s such a big issue that the federal Department of Human Services has a general guide on major liability issues: http://aspe.hhs.gov/daltcp/reports/cdliab.htm.
 
This all has had the result of requiring more agencies and workers, with a corresponding need for more state licensing. Workers now make crucial, life-affecting decisions: adding to liability. It’s especially true in these three areas: (a) state licensing, (b) contracting, and (c) and crucial health care that means “liability” for making mistakes (or having some aspect of care ignored). It all adds up to saying “Yes,” there might be liability. And not only “liability” for the agency, but potentially for individual workers.
 
The ADA means there is potential civil liability, too: http://www.ncbi.nlm.nih.gov /books/NBK11429/.
 
You also need to look at some of the general rules about liability under what’s called Tort law, and the meaning of “negligence.” Torts are different from “laws,” because they aren’t necessarily written down in a statute or regulation. As a general idea, think of negligence as being in three parts: (a) a duty you owed to a particular someone, (2) failing to meet that duty, and then (3) some harm by you to that particular someone. To be liable, each of these three things has to be present. If you can excuse any one of these three factors, then you shouldn’t be liable.
 
But the negligence system isn’t perfect and juries sometimes make really bad decisions. And negligence under “tort” isn’t the only way you can be held possibly liable. This is especially true in the situation you described, where there are also care relationships between your agency (and workers) and other care providers. What happens when the big mistake is made by someone you work with? An example can be medical: someone administers the wrong drug, and your staff didn’t notice a change in behavior, resulting in some harm to a third person. In that case, negligence liability can be replaced by what’s called strict liability…if there’s a law on Georgia’s books about a duty of a care provider to third parties, your liability risk goes sup.
 


  • The Importance Of Professional Licensing

 
Every state now routinely licenses all day care or wrap-around service facility (such as an adult workshop) and workers for those who work for people with disabilities. Breaking these license rules add up to liability.
 
We’d briefly discussed, above, the possibility of strict liability…where your agency may be charged with failing to meet some law. Try reviewing Georgia’s DHS “Out of Home Care” department for tips… https://www.gascore.com/content/page .cfm/8/ resources_for_providers.
 

  • Shielding Your Agency and Staff From Unnecessary Risks

 
Because there’s almost always some “contractual” element involved here, there’s a chance that your agency can also limit some liability in these cases, too. The idea there is to have a contact spelling out who is liable for what.
 
Have workshops on areas of legal liability. Let the staff know they also may bear some risks for bad decisions and non-disclosure of risk or dangers. One way to review liability is to look at your organization’s business structure. A corporation or LLC might be a way to lower your liability. Reviewing how you hire employees or sub-contract with workers as Independent Contactors may help, too. Two places you can get some combined business/planning advice would be through a group of the Service Corps of Retired Executives (SCORE)… http://atlanta.score.org/node/146721 (which is free), or through the Georgia Bar Pro Bono service… http://www.gabar.org/publicservice /volunteer.cfm.