2021 Senior Living and Long-Term Care Litigation Seminar Agenda

Senior Living and Long Term Care Litigation

*Schedule and Speakers subject to change

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Wednesday, September 22, 2021

Time (Pacific) Program
4:00 p.m. Registration
6:00 p.m. Networking Reception

Thursday, September 23, 2021

Time (Pacific) Program
7:00 a.m. Registration and Continental Breakfast
8:00 a.m. Welcome and Introduction

Ted McDonald, McDonald Veon PA, Overland Park, KS
Drew Graham, Hall Booth Smith PC, New York, NY
8:15 a.m. The Fork in the Road: Empowering Collaborative Resolution Strategies

Many professional liability claims in senior living arise from common issues such as falls and skin integrity. However, as our population ages, we are facing increasing claim complexity. At the same time, our clients are facing challenging insurance markets, increased regulatory challenges and declining reimbursement. In this session, an experienced panel of claims leaders will address the best practices for excellence in client focused collaborative resolution strategies. Topics will include the importance of the claims and defense counsel relationship; end-in-mind initial status reporting; how to define the scope and urgency of the initial investigation; managing time-limited demands; finding efficiency in the defense team; and, how to develop collaborative early resolution plans on time and on budget.

Ashley S. Heslop, Hall Booth Smith PC, Mount Pleasant, SC

Mark J. Stenner, Ironshore, Chicago, IL
Tom Goodwin, Brookdale Senior Living, Nashville, TN
9:05 a.m. Back to Basics: Common Employment Law Concerns in the Senior Care Industry and Current Trends

This session will explore common employment law issues confronting senior care operators and how to mitigate against future claims from employees. Topics to be covered include an overview of the national employment litigation landscape, wage and hour vulnerabilities for long-term care operators, medical and recreational marijuana use by facility employees, best practices for handling employees with disabilities and vaccine mandates.

Caroline J. Berdzik, Goldberg Segalla LLP, Buffalo, NY
9:55 a.m. Refreshment Break
10:15 a.m. Defending Staffing/Rebutting PBJ Attacks

"Expected Staffing", "Required Staffing", and "CMS Mandated Staffing" are terms common in complaints against nursing homes. Usually staffing concerns are not what is driving the complaint, but allegations of not meeting some “mythical staffing standard” are included. Disconnects in data between Payroll-Based Journal (PBJ), and the system that it replaced (CMS form 671), are often wrongly compared with time clock punches, staffing sheets, and cost reports. This session will address the most common arguments presented around staffing, the data and the regulatory requirements pertaining to staffing. Specific case studies will illustrate past successful defense against staffing allegations.

Steven Littlehale, Zimmet Healthcare Services Group LLC, Morganville, NJ
11:05 a.m. Understanding and Defending Senior Living Investor Relationships

This panel will provide insight into the various types of passive investor relationships by an industry insider, as well as strategies for dismissal and discovery when defending an investor. Nationally we have witnessed a concerted strategy by plaintiff attorneys to include as many defendants as possible in SNF and ALF negligence suits, regardless of the corporate veil. These additional, and improper, defendants may include REITs, limited liability owners, shareholders, or other types of passive investors. This session will provide the unique perspectives of both the senior living attorney and client investor in facing the challenges of defending claims brought against both individual and corporate entity investors.

Paul A. Dzenitis, Dzenitis Newman PLLC, Louisville, KY
Emily Newman, Dzenitis Newman PLLC, Louisville, KY
11:55 a.m. Lunch (On your own)

Reconnect and network with your DRI friends at a Women in the Law Lunch. Local Dine Arounds include Cipriani, Jardin, or Tableau. To register for the local Dine Arounds, please click the links below. For more information, please contact Ashley Heslop.

Sign up for lunch at Cipriani
Sign up for lunch at Jardin
Sign up for lunch at Tableau
1:00 p.m. The Good, the Bad, and the Ugly: An Update on Nationwide SNF and ALF Decisions and Verdicts

You will not want to miss this national survey of critical cases and outcomes in the world of aging services litigation. Ms. Stanley will provide an insightful overview of the opinions, orders, and verdicts over the past year that impact the defense of skilling nursing and assisted living facilities. This will be a unique opportunity to learn useful arguments from other jurisdictions, new strategies by the plaintiffs’ bar and nationwide trends in long-term care litigation.

Christine L. Stanley, Quintairos, Prieto, Wood & Boyer, P.A., Lexington, KY
1:50 p.m. Juror Perspectives in the Post-COVID Era: Report of Focus Group Studies

The COVID-19 pandemic may have shut down the courts for much of 2020 and into 2021, but jury research continued out of the necessity to accurately evaluate how jurors will view pending cases to prepare for mediations and other case deadlines. Join jury consultant Claire Luna and attorney Jack Oliver for a discussion and review of actual focus group footage – in person and virtual – from the past 16 months throughout the country and gain a better understanding of how COVID has impacted juror attitudes on key issues such as healthcare, liability and damages.

John (Jack) Oliver, Quintairos, Prieto, Wood & Boyer, P.A., Dallas, TX
Claire N. Luna, Jury Impact, Inc., Irvine, CA
2:40 p.m. Refreshment Break
3:00 p.m. Regulatory Update: Three Important Regulatory Developments for Litigators

The U.S. Department of Health & Human Services Office of the Inspector General (HHS-OIG) recently stated that the transfer or discharge of a "resident initiated by a nursing home can be an unsafe and traumatic experience for the resident and his or her family." This session will focus on the federal regulations, penalties, and appeals associated with the discharge process and focus on the new scrutiny placed on discharge and transfer procedures. The session will also include an update on infection control surveys conducted during the COVID pandemic and a deep dive on appeals and litigation associated with findings of infection-related noncompliance. Finally, the presenters will cover CMS's renewed commitment to evaluate post-COVID quarantine cognitive and quality of life decline as part of the recently announced visitation guidance for skilled nursing facilities.

Joseph L. Bianculli, Healthcare Lawyers PLC, Arlington, VA
Michael Redhair, Ensign Services/Cornet, Tuscon, AZ
Kathleen M. Reilly, Ensign Services Inc., San Juan Capistrano, CA
3:50 p.m. COVID Wounds: Clinical Insights

This presentation will discuss how to clinically differentiate the COVID Skin Injury from a Hospital Acquired Pressure Injury, including discussion of the guidelines that have previously formed the SOC, and the disease processes behind the development of these wounds. The discussion will highlight the key elements of documentation, risk analysis and modifications necessary for a successful litigation defense of these newly evolving skin failure issues in age of COVID-19.

Tammera E. Banasek, HeplerBroom LLC, Chicago, IL
Mary Foote, RN, Woundcare on Wheels, Inc., Galena IL
4:40 p.m. Adjourn
5:00 p.m. Medical Liability Committee Meeting (Open to all)
6:00 p.m. Networking Reception

Friday, September 24, 2021

Time (Pacific) Program
7:00 a.m. Registration and Continental Breakfast
8:00 a.m. Welcome and Introduction

Jennifer L. Strange, Drewry Simmons Vornehm LLP, Carmel, IN
8:15 a.m. Different Settings, Different Outcomes: How Senior Living Communities and Nursing Homes Experienced COVID-19

A recent study by NORC at the University of Chicago (NORC), with a grant from the National Investment Center for Senior Housing and Care (NIC) published in June 2021, found the experience of those living in seniors housing compared to skilled nursing facilities was starkly different. The speakers will discuss this study from the viewpoint of senior living managers, owners, and investors. The panel will address the study’s findings and provide insight into how this data could impact claims and insurance pricing/market conditions going forward. The panel will identify emerging issues in the senior living sector important to all who defend these communities in litigation as well as discuss litigation and claim trends. This will be an interactive session with time for questions.

John Atkinson, Marsh, Chicago, IL
Jennifer L. Disner, Western Litigation Inc., Greenwood Village, CO
Bree Williams, Ventas, Inc., Chicago, IL
9:05 a.m. Taking Control of eDiscovery - Proportionality in Practice

Since the Federal Rule amendments in 2015 re-emphasized proportionality as a principle in relation to discovery, organizations have struggled to manage the discovery process in a proportional yet defensible manner. What are the challenges with "right-sizing" discovery, what can be leveraged from the rules and relevant case law, and what best practices can be deployed for quick evaluation of potentially relevant custodians and data sources? This panel will address these questions while providing practical recommendations and resources for leveraging proportionality arguments in discovery.

1. Legal Principles: Proportionality Rules and Relevant Case Law
2. Proportionality Pitfalls: How Not to Make a Proportionality Argument
3. Strategies and Frameworks for Organizing Information to Successfully Engage in Proportionality Negotiations and Arguments

Jay C. Carle, Seyfarth Shaw, Chicago, IL
Ted J. McDonald, III, McDonald Veon PA, Overland Park, KS
Mandi Ross, Insight Optix, Chicago, IL
9:55 a.m. Refreshment Break
10:15 a.m. The Economic Impact of Ineffective Witness Testimony

Witness performance at deposition is critical to case outcomes, particularly economically. Strong, effective depositions decrease a client’s financial exposure and costs, while weak, ineffective depositions result in higher payouts on claims during settlement negotiations (i.e., a nuclear settlement). Specifically, when witnesses drop "bombs" at deposition, those "bombs" end up costing an extraordinary amount of money. In this presentation, Dr. Bill Kanasky, Senior Vice President of Litigation Psychology at Courtroom Sciences, Inc., reviews the fundamental components of witness effectiveness and how to maximize witness testimony performance to deliver superior litigation outcomes.

Dr. Bill Kanasky, Courtroom Sciences, Inc., Irving, TX
11:05 a.m. COVID-19 Legal Update

COVID-19 Healthcare Litigation: where it began, where we are, and where we are going. In this interactive presentation, two specialists in COVID-19 healthcare litigation who have been involved in this field from the start will present an overview of the litigation landscape as it has evolved from its inception in April 2020 to the present and will provide insight into where the cases are moving in the future.

Olga Kats-Chalfant, Princeton Insurance, Westfield, NJ
Lisa Ann T. Ruggiero, Locke Lord LLP, New York, NY
11:55 a.m. From Advocate to Advisor: Ethical Considerations for Attorneys in Early Case Resolutions

Communication and Resolution Programs (CRPs) are an emerging form of conflict resolution in healthcare intended to settle claims of medical negligence without resorting to litigation. CRPs have produced compelling evidence thus far that seems to support an ethical and business case for proactively disclosing medical negligence, mediating disputes after unexpected resident injuries, and making early offers of fair compensation when residents are harmed by preventable mistakes. This session will cover ethical considerations for attorneys advising clients on how to conduct difficult conversations about care with residents and their families.

Aaliyah K. Eaves, Dinsmore & Shohl LLP, Louisville, KY
12:55 p.m. Adjourn