Should we talk to the family after a serious incident?

The research on why patients and families sue is consistent across settings: the decision is driven far more by a perceived lack of honesty and a lack of communication than by the severity of the injury itself. Families who feel informed and respected pursue litigation less often than families who feel handled.

In senior living the effect is amplified because the family relationship is ongoing. The people you stop talking to still have a parent in your building, and their sense of what happened is being formed by silence.

A majority of states have enacted apology statutes making expressions of sympathy, condolence or benevolence inadmissible in a subsequent civil action. A smaller number extend protection to statements of fault or error.

That distinction is the whole practical question. In a sympathy-only state, saying we are so sorry this happened is protected while saying we should have checked on him sooner is admissible. Know which kind of state you are in before the conversation, and brief your administrators on it rather than leaving it to instinct.

Do it early, in person, with the administrator or director of nursing present rather than delegated down. Say what is known, say plainly what is not yet known, and commit to a specific follow-up with a date.

Express sympathy without characterizing fault. Do not speculate about cause, do not blame a staff member, and do not describe the internal review as having found anything before it has concluded.

Document that the conversation happened, who attended and what was said, in a factual note. A documented, prompt, respectful disclosure is a good fact at trial. An undocumented one gets remembered differently by each side.

Most policies contain a condition prohibiting the insured from voluntarily assuming an obligation or making a payment without consent. Expressing sympathy and disclosing facts is not assuming an obligation. Offering to waive charges, pay funeral costs or fund anything is, and doing it without consent can prejudice coverage.

So the sequence is: talk to the family about what happened, and talk to the carrier before offering anything. Where the incident is serious, notice it as a circumstance the same week, which also puts a claims professional beside you for the conversations that follow.