By Jack Cumming

Nearly five years ago, I wrote an article about Stephen Garcia, the master litigator, who holds senior living enterprises to their promises. The article went into the techniques that he uses to prevail in depositions and in court, and how that provides him with a very lucrative lifestyle. He presented himself as a kind of Robin Hood, deciding from the outset of a case whether the defendant provider was well-intentioned or aggrandizing.

The Litigator’s Tricks

In a session at a University of Southern California conference, Mr. Garcia had explained his focus on the provider’s policies and procedures manual. He would then depose an employee, often one for whom English is a second language, and ask them if they followed the provider’s policy and procedures. Given the obvious answer, Mr. Garcia would then drill down on an obscure paragraph in that document and make that relevant to the tort.

You can imagine the outcome. Mr. Garcia knew that he could prevail. The defendant then also knew that he could prevail. Sticky wicket, as the English say. My advice then, in 2020, was that providers keep their policies and procedures simple and principled so that any employee could easily have them all in mind at all times. I wish that I could say that at least one provider had followed that advice, but I don’t think so. Of course, lawyers are involved in most policy and procedures manuals, and lawyers love words and pithy details, lots of both.

Leveling the Playing Field

Now Joe Velderman, VP innovation at Cypress Living in Florida, has suggested something that can please both the drafting lawyers and the poor low-level caregiver who is called to a deposition. It’s an obvious, and not difficult, application of artificial intelligence. Let’s say each caregiver’s own training is augmented by a parallel AI advisory bot. The caregiver’s instincts are supplemented by bot advice, e.g., think of this or that, and the bot is right there ready with the best response to the crisis at hand.

Using the simple though impressive capabilities of something as rudimentary as ChatGPT, that advisory bot can be loaded with the entire, verbose policy and procedures manual, and the bot can be there, in the moment, speaking into the caregivers’ AirPods at the critical moment. Crisis ameliorated. Liability averted. The provider becomes one of Garcia’s “good guys.”

The Ill Effects of Litigation Fear

For now, some in the industry are obsessed with litigation liability fears to the point where that can become more important that what is best for the welfare of the residents. I’m thinking here particularly of a very costly, outdated resident call system. The system I’m thinking of is often preferred to better systems because it limits tracking to residents only while they are on the premises. Providers don’t want to risk becoming responsible for residents when they are off the premises, across the street at a coffee shop.

Now AI has suddenly burst on the scene, and it can give us a new birth of mission. Instead of fear of liability, we can let that AI bot help staff to do the right thing. If we confirm that residents are fully aware that they are on their own at the coffee shop, then we can use new technologies like AI equipped smartwatches instead of periphery-wired, anachronistic call systems.

Ideal would be for the plaintiffs’ bar to be responsible for reimbursing the defense costs for unfounded litigation, but that seems like a distant dream. In the meantime, top notch performance and genuine concern for resident welfare is the best antidote to gotcha litigation. With AI now at hand, it’s a small step to ensure that staff on the scene when a crisis occurs have all the information that even the most cynical trial attorney could ever expect.

Vulnerability Breeds Liability

The nature of senior living involves caring for vulnerable people whose crises can tug at the hearts of jurors sitting in a courtroom box. Augmented intelligence bots at hand to help staff do the right thing can turn a distorted system in favor of those who commit to helping others.