Publications: Ask The Legal Expert - March 2005

How do we get one of those temporary restraining orders for visitors or family members who are a royal pain in the neck and sometimes abusive to staff?

Generally, when a person (wrongdoer) poses a real threat to a resident or staff member, a court is empowered to enter a temporary restraining order (TRO), directing the wrong-doer to do or not do some action.

Two important elements that a facility will have to show the court are (1) “irreparable harm” — what harm will happen that later cannot be undone, or would require extraordinary effort to undo, and (2) a “reasonable likelihood of prevailing on the merits” — why your position is the correct or better one for the court to adopt.

TROs are extraordinary remedies, however, and should generally be used only to bar persons from the facility when there is a real and immediate threat to the health, safety, or welfare of a resident or others, or of a serious violation of residents’ rights.

Are our incident reports subject to discovery in negligence or malpractice claims?

The answer varies from state to state. Some states have statutory law, case law or privilege doctrines (e.g., attorney-client privilege, attorney work product, self-critical analysis) that bar the discovery of incident reports. Other states subject the reports to discovery.

Generally, the incident reports themselves have little protection, as facilities are required to send them to state agencies. Incident investigation reports have much more protection. Usually, though, a facility can best protect itself by being very careful, from the start, as to what it states in a report.

Reproduced with permission from McKnight's Long-Term Care News

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