Tips on Handling Nursing Home Cases
I. EDUCATING YOUR JUDGES AND JURORS
Before you can educate the Judge and Jury in your nursing home claim you must first be educated yourself. There is a significant amount of law and regulations which an attorney must learn prior to entering the arena of nursing home abuse litigation. One of the most effective ways to initially learn the topic and adequately represent your client is to co-counsel with an attorney experienced in this unique area of practice.
In order to truly represent the victims of nursing home abuse and neglect you must first learn the terminology and remove multiple misconceptions about nursing home claims that lie with both the judiciary as well as the jury.
Nursing home abuse and litigation is one of the fastest growing areas of practice with a significant amount to be interpreted and discovered. There is virtually nothing more rewarding than improving the quality of life and care to our elderly by this type of practice. For many years attorneys took little interest in pursuing nursing home cases based on the misconception that the elderly's claims are not worth significant money. In fact, based on New Jersey Wrongful Death Statute it is wrongfully believed that the death of the elderly hold virtually no value at all to either a Judge or a Jury.
As stated in various other portions of this seminar, some of the most common injuries in a nursing home abuse and neglect case involve dehydration and malnutrition, weight loss, decubitus ulcers, fecal impaction, septic shock, improper use of restraints, urinary tract infections, poor physical and dental hygiene, scalding and burns, aspiration, broken hips and other fractures, physical, mental and verbal abuse, mismanagement of medication, improper use of restraints, choking, sexual abuse, gangrene, elopement and violation of patient's rights.
More often than not mistakes made by attorneys handling these cases do not necessarily involve poor representation by the attorney, however in many cases it involves poor education and communication skills on behalf of that attorney. As such, the most common mistakes which attorneys allow the judiciary and jurors to make are as follows:
Declining health is natural in a nursing home.
Both state regulations as well as the federal regulations contained within OBRA require that a nursing home resident maintain a level of health or improve in health. Any decline in health without physician or family intervention is simply inappropriate and unacceptable. It is mandatory that the practitioner educates the judiciary to the fact that the nursing homes must take action for any decline in health. There must be either a care plan change or some notation in the flow sheets to indicate the decline in health and the reason for same. It simply is not acceptable that our elderly decline in health and nothing is done to stop the tide.
Nursing home claims are medical malpractice cases
The medical malpractice claim arises solely from the lack of compliance with the standard of care, in other words, there must be a showing of the deviation of a standard of care which is the proximate cause of the injury in a medical malpractice case. Thereafter there are significant proximate cause issues which are dealt with in other seminars. However, to the contrary, in nursing home cases the resident of the nursing home has rights and guarantees set out by state and federal statutes interpreted and enforced by state and federal regulations. Failure to comply with these regulations provide the basis for nursing home claims. Whether the regulation is set out in Title 30:13-1 et seq., N.J.S.A. 8:39, N.J.S.A. 8:43, or the OBRA regulations set out in Title 42 of the Code of Federal Regulations. These duties among others cannot be escaped and it is important that the practitioner educate the judiciary on these causes of action.
Accidents in nursing homes are not your average accident. There is a common misconception that accidents, falls, decubitus ulcers and elopements are expected and are the norm in a nursing home. However, this completely ignores the fact that the sole purpose for the resident to be in the nursing home is to avoid these types of claims. Most, if not all, residents of a nursing home are there because they are unable to care for themselves. The nursing home advertises and states that they will be able to care for the resident and to allow accidents to occur is simply unacceptable. In fact, it is argued that there is a heightened duty to ensure safety and prevent accidents in a nursing home.
The nursing home performed initial assessments, creates care plans, and follows that care plan to address many risks for various residents whether it be a fall risk, a pressure ulcer risk or some other problem or risk affecting the resident . Therefore, the practitioner should never allow either the judiciary or the jury to ever reach a conclusion that "things happen"
Injuries to the elderly have little or no value
In New Jersey all attorneys are well aware of the New Jersey Wrongful Death Act which essentially only values a life based on the pecuniary loss to the heirs of that elderly person. It is rare that a practitioner ever encounters a nursing home abuse case wherein the resident of the nursing home actually is taking care of their children, rather it is the other way around.. However, to allow a Judge and/or jury to ever indicate that the value of the elderly is minimal is outrageous and unacceptable for any nursing home abuse and neglect practitioner. There is a significant value to live your life with dignity, to die on your own terms and to enjoy the golden years in a pain free lifestyle. The last remaining years of life should not be years of physical and emotional suffering, abuse or neglect. It is paramount that this mantra is used over and over again with the judiciary as well as during your jury trial.
Failing to have expert opinions in place prior to suit
The last thing you want to do is file a complaint then attempt to find experts with regard to either the nursing care, administrative care or medical care. It is important that as the records are obtained by either you or your staff they are constantly reviewed by nursing experts who understand the chart and how to interpret the chart
As long as the practitioner avoids the aforementioned mistakes they will be put in a position where they can competently represent the family of our elderly who are abused and neglected on a daily basis in our long term care facilities.
DEPOSITIONS AND DISCOVERY
I. THE DEPOSITION IN GENERAL
A. Basic New Jersey Law
As most practitioners understand, in the State of New Jersey, all objections are preserved for the time of trial other than objection to form. There is a specific rule which does not allow attorneys to make speaking objections during the deposition itself. This is a rule that is complied with at this point by most New Jersey Lawyers, however, in many of these nursing home cases out of state lawyers are being brought in pro hac vice, and are not familiar with our stringent rule regarding objections to depositions. It is incumbent upon all of us to be aware of this practice and not allow an attorney in New Jersey to obfuscate the deposition practice by constant objections which are speaking in nature thus informing their witness what to say.
In addition, it is essential to go over with the deponents each and every log, medical record and anything they reviewed in preparation of their deposition. Although statements made to them by the attorney for the defendant may not be discoverable, depending on whether this particular deponent qualifies as an expert party, it is important to note whether such conversations took place prior to the depositions.
B. Video Tape All Important Depositions
One of the unique aspects of nursing home litigation is the multitude of nurses and staff members of the various homes which need to be deposed. What is even more unique about nursing home negligence is the general transient nature of the employees who are to be deposed. Due to the transience of this group of people, depositions should be immediately scheduled of many of the employees and those who are believed to have important information I tend to videotape all depositions.
Rule 4:14-9 controls the ability of a party to video tape the depositions of any other parties and/or witnesses. A party intending to video tape a deposition shall serve the notice required by 4:14-2a not less than 10 days prior to the date therein fixed for the taking of the deposition. The notice shall further state that the deposition is to be video taped. See Rule 4:14-9b. What is important to note from this rule is that it does not apply only to experts nor does it apply only to de benne esse video taped depositions. A party can video tape any deposition they choose to as long as 10 days notice are given.
Quite often we are met with objections by defendants that the video taping of these witnesses simply are utilized to bully or intimidate the witness. Nothing could be further from the truth. The reason for video taping witness's testimony is so that if they become unavailable at the time of trial the jury can actually see the person testifying as opposed to hearing the antiseptic reading of a transcript.
The fact that the deposition is being vide taped does not change the fact that a certified court stenographer must be present to create a written transcript record. However, there is nothing in the rules which indicates that the videographer taking the video must be certified in any way. In fact, many attorneys have purchased a digital video recorder and set them up on a tripod focused solely on the witness to video tape the depositions. This helps reduce the cost of the depositions as in many cases with multiple depositions this cost can exceed $10,000.00 for normal transcripts and should a professional videographer be involved the cost could escalate to $20,000.00.
The attorneys who do video tape their depositions must also remember that it is their responsibility to provide copies of the video tapes to all defense attorneys.
At the time of trial you may then utilize not only the written transcript but also the video taped transcripts when confronting the witness or other witnesses regarding the veracity of what was stated. What is particularly compelling is a video tape of either a Director of Nursing or other important members of the nursing home staff indicating answers such as "I don't know" often and almost as a pattern. Listening to a Director of Nursing saying "I don't know" 47 times can be more compelling than having the particular Director of Nursing actually answer the questions.
The New Jersey Court rules clearly state that the video tape of the depositions can be utilized, as a written transcript can be utilized, pursuant to Rule 4:16-1. It is recommended to those who regularly practice in this arena purchase a good digital video camera along with a separate lap top and software that can edit and control these video tapes and make them dedicated to video taped depositions. In the scheme of things this is not very expensive and will make the practice much easier and controllable.
As a caution, an attorney in Central Jersey was handling a podiatric malpractice claim and obtained 2 days of very important depositions to his case. He informed me that the court reporter inexplicably lost the transcript and it was forever gone. If he had video taped the depositions they could have made a transcript from the video tape, sadly the depositions were not video taped. This attorney, after speaking with me as well as others, has now purchased a camera and dedicated lap top so that all depositions are now video taped.
C. Know the Law
It is essential prior to taking any depositions in a nursing home litigation claim that you are aware of all levels of law applicable. This would include the New Jersey Nursing Home Bill of Rights, N.J.S.A. 30:13-1 et seq and all case law interpreting same, The New Jersey Administrative Codes relevant to these cases, N.J.A.C. 8:39 and N.J.A.C. 8:43, Omnibus Budget Reconciliation Act of 1987 amended 1990 under Title 42, Section 483 et seq, as well as New Jersey Elder Abuse Statute under N.J.S.A. 52:27d 7.1. It is impossible to conduct any meaningful depositions without these laws being read and understood and prepared for. In our office we have a separate binder containing these statutes which are utilized to prepare for each and every deposition that is taken by any representative of a nursing home. Without understanding the various regulations under the New Jersey Administrative Code as well as the OBRA regulations it is impossible to truly handle nursing home litigation cases in the matter which they must. In many minor depositions it could take hours and hours of preparation time to take a forty minute deposition. However, that is what is necessary in these cases.
II. DEPOSING THE CORPORATION
As stated previously in complex, complicated matters such as nursing home litigation cases it is difficult to simply send form interrogatories and expect all papers which you are seeking. The challenge is not only to identify the necessary documents that are important to uncover the truth, but compel the complete production of those documents. Traditional approaches to discovery is often met with "evasive" responses. This is not to indicate that defense attorneys are not being truthful with plaintiff counsel, more often than not it is a decision made without input by the defense attorney. Although there have been instances where defense attorneys have been quoted in indicating that they do not turn over all documents even though they were properly requested. This of course should be rare and is an ethical breach of our rules of professional conduct.
B. N.J.R. 4:14-2: The Ultimate Request
New Jersey Rule 4:14-2 is in essence the state's version of federal rule 30:B5 and 30:B6, which we all know is a very powerful tool. In essence rather than sending form interrogatories as well as a form request for production of documents you may send all within one subpoena and demand that a representative of the corporation appear as a representative to answer questions about the records as well as what types of records are present. The reason for this deposition is not to ask this representative about the specific treatment of your patient regarding how often she was turned and how many nurses actually saw her, rather the goal of this deposition is to find out each and every policy and procedure and every document which exists, whether privileged or not.
This questioning would include peer reports, incident reports, letters received from the Department of Health and Senior Services, letters received from Medicaid and Medicare regarding violations, nutritional records, pharmaceutical records, policy and procedure manuals, and every other record that is possibly kept.
The rule states as follows:
4:14-2. Notice of Examination; General Requirements; Deposition of organization.
Except as otherwise provided by Rule 4:14-9b, a party desiring to take the deposition of any person upon oral examination shall give not less than 10 days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, which shall be reasonably convenient for all parties, and the name and address of each person to be examined, if known, and, if a name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs. If a defendant fails to appear or answer in any civil action within the time prescribed by these rules, depositions may be taken without notice to that defendant.
B. Time Period
The court may for costs shown enlarge or shorten the time for taking the depositions
A party may in the notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and they set forth for each person designated the matters on which testimony will be given. The person so designated shall testify as to matters known or reasonably available to the organization.
D. Production of Things
The notice to a partied deponent may be accompanied by a request made in compliance with and in accordance with the procedures stated in Rule. 4:18-1 for the production of documents and tangible things at the taking of deposition.
As you can see from reading the statute it is essential in complex cases especially in nursing home litigation cases. This gives you the opportunity to depose a representative of the corporation who speaks for the corporation regarding all the documents they have and where they are kept. In the appropriate cases you may also discuss with this particular witness the cost reports and how much money and time is being spent per bed for understaffing issues.
What is of utmost importance is that it is clear that a party objecting to the notice, time or place of the deposition is not free to simply refuse to attend. A protective order should be obtained in these situations pursuant to Rule. 4:10-3. See Gero vs. Cutler 66 N.J. 443(1975). In other words once this has been noticed the defense attorney can't simply arbitrarily cancel the depositions they must attend or seek a protective order as to why they cannot attend. Once the protective order is filed the burden then would shift on the plaintiff as to good cause why the deposition should go forward.
Although there maybe specific people you wish to depose as corporate representatives, it is the corporation's obligation to designate the appropriate person. If in fact you are asking questions or this appropriate person and they simply do not know the answer of where different records are kept or what types of records are even kept in a nursing home, then the defendants must designate the appropriate representative who does have these answers.
By utilizing this deposition you are then, in the perfect world, in receipt of the complete medical chart as well as policies and procedures and any other documents which could possibly exist at this particular nursing home. The primary purpose of the document production witnesses to establish the completeness of the records. Thereafter additional witnesses may be examined as to the content of those records. Keep also in mind that the deponent organization has a duty to prepare the witness to testify to matters not only known by the deponent but those who should be reasonably known by the designating party. Therefore they can't simply send a sacrificial lamb to be deposed who says I don't know that is not my department! These depositions should be utilized in most if not all of these cases so that no surprises occur at trial and the ultimate goal of truth is achieved.
C. Form Request pursuant to 4:14-2
SAUL G. GRUBER, P.A.
xxxxxxxxxxxxxxxxx SUPERIOR COURT OF NEW JERSEY
xxxxxxxxxxxxxxxxxx NOTICE TO TAKE DEPOSITION
Defendants. R. 4:14-2(c) (d)
PLEASE TAKE NOTICE that pursuant to R. 4:14-2(c), the stenographic deposition of xxxxxxxxxxxxx, et als, will be taken before a person authorized by the laws of the State of New Jersey to administer oaths on March 10 at 10:00AM. at the offices of Saul G. Gruber, P.A., 1909 Route 70 East, Cherry Hill, New Jersey with respect to all matters relevant to the subject matter involved in this action. The oral examination will continue day to day until completed. Pursuant to R. 4:14-2(c), xxxxxxxxxxxxxxxxx is required to designate and fully prepare one or more officers, directors, managing agents, or other persons with the most knowledge concerning the following designated matter; or other persons who consent to testify on its behalf, and whom the defendant will fully prepare to testify regarding the following designated matters, and as to such information that is known or reasonably available to the organization;
Pursuant to Rules 4:14-2(c) and 4:14-2(d), Plaintiff requests that xxxxxxxxxxxxxxxxproduce the following documents and tangible things, as well as permit Plaintiff=s counsel to inspect and copy each of the following documents and tangible items in possession, custody and control of xxxxxxxxxxxxxxxxxxxxxx, by attorneys and other representatives or agents;
SCHEDULE OF DOCUMENTS
1. RESIDENT RECORDS:
A. All records involving xxxxxxxxxxx, including, but not limited to: medical records, resident chart, admission contract, all business files, all electronic files, and any other facility records that contain information regarding xxxxxxxxxxxxxx.
B. All documents, including visitor logs, that indicate all persons who visited xxxxxxxxxxxxxxxxxwhile she was a resident at the xxxxxxxxxxxxxxxx (Defendant shall redact only the information that would identify residents other than xxxxxxxxxxx)
C. All documents, including visitor logs, that indicate when xxxxxxxxxxxxxx was not present at the xxxxxxx. (Defendant shall redact only the information only the information that would identify residents other than xxxxxxxxxxxxx)
2. FACILITY RECORDS:
A. Floor plan of the entire xxxxxxxxxxxxxx, as found on July 19, 2002.
B. All written policies and procedures that were in effect at any time when xxxxxxxxxxxxxxx was a resident xxxxxxxxxxxxx
C. All organization charts for xxxxxxxxxxxxxxxxx in effect at any time while xxxxxxxxxxxx was a resident.
D. Complete copies of the directory for all telephone extensions at xxxxxxxx in effect at any time while xxxxxxxx was a resident.
E. All written job descriptions in effect at any time while xxxxxxxxxxxx was a resident for the following positions:
F. All contracts involving the Medical Director(s) at the xxxxxxxxx in effect at the time while xxxxxxxxxx was a resident.
G. Regional or National reports that reference or discuss xxxxxxxxxx at any time between January, 2001 through December, 2003.
H. Profit and Loss reports pertaining to any time between January, 2001 through December 2003.
I. Medicare annual cost reports filed by or on behalf of the xxxxxxxxxxxx for the years 2001 through 2003.
A. All records including, but not limited to, any written materials, film, video, recording, book, or periodical, that was provided to any nursing personnel for purposes of demonstrating, describing, or instructing employees on the proper resident care at the xxxxxxxxxxxxxx, at any time between January, 2001 through December , 2003 and the present.
B. Any and all attendance sheets, rosters, or other documentation that identify the persons that attended any in service or training program for nursing personnel of the xxxxxxxxxxxxxx, at any time between January, 2001 through December 2003 and the present.
4. RESIDENT ACUITY/CENSUS:
A. Administrative policies and procedures, and/or guidelines, relating to resident census and/or resident acuity between January, 2001 through December 2003.
B. Monthly census reports for the time period between January, 2001 through December, 2003.
C. All census trend reports for the time between January, 2001 through December, 2003.
D. Daily acuity reports for the time between January, 2001 through December, 2003.
E. Monthly acuity reports for the time between January, 2001 through December 2003.
F. All acuity trend reports for the time between January, 2001 through December, 2003.
G. Weekly and/or monthly admission/discharge reports.
A. Administrative policies and procedures, and/or guidelines, relating to facility staffing.
B. Administrative policies and procedures and/or guidelines, relating to specific unit staffing.
C. Daily census report for the time period between January, 2002 through December, 2002.
D. Medicare sign in logs or reports for any time periods between January, 2002 through December, 2002
E. All staffing schedules for any time period between January, 2002 through December, 2002
F. Daily station assignments for any time period between January, 2002 through December, 2002.
G. Daily assistant assignment records for any time period between January, 2002 through December, 2002.
H. Daily assignment sheets for the time period between January, 2002 through December, 2002.
I. Daily staffing reports for any time period between January, 2002 through December, 2002.
J. Daily time cards for all nurses and nursing assistants for any time period between January, 2002 through December, 2002.
K. Complete, punched reports for any time period between January, 2002 through December, 2002.
L. All payroll end period reports/payroll analysis reports for any time period between January, 2002 through December, 2002.
M. All computer software user manuals and/or instructions for programs used with regard to staffing schedules, staffing reports, punched detail reports, and employee payroll.
N. All employee turnover reports for any time period between January, 2002 through December, 2002.
O. All hours of labor reports and/or any other labor distribution reports by facility department for any time period between January, 2002 through December, 2002.
A. Administrative policies and procedures, and/or guidelines relating to resident complaints.
B. Administrative policies and procedures, and/or guidelines relating to employee complaints.
C. All resident complaints during the time period of January, 2002 through December, 2002. (Defendant shall redact only the information which would identify residents other than xxxxxxxxx).
D. All employee complaints during the time period of January, 2002 through December, 2002.
E. All employee surveys during the time period of January, 2002 through December, 2002.
F. All resident/customer satisfaction surveys during the time period of January, 2002 through December, 2002.
G. All resident counsel meeting minutes and administrative responses to residents= concerns during the time period of January, 2002 through December, 2002.
7. MANAGEMENT AGREEMENTS:
A. All management agreements between the facility licensee, xxxxxxxxxxxxxx and any other entity that had a role in the management or operation of the xxxxxxxxxxx, at any time between January, 2002 and December 2002.
B. All consulting contracts between the facility licensee, the xxxxxxxxxxxx, and any other corporations, agencies, and/or consultants who had any role in the management or operation of the xxxxxxxxxxxxx, at any time between January, 2002 and December, 2002.
C. Any and all contracts, agreements, or any other type of document relating to ownership, management, and/or operation of the xxxxxxxxxxxx, including, but not limited to, management agreements, agreements with agencies providing nursing staff, sales agreements, leases, contracts relating to parties, owners of the nursing home, real estate, building or nursing home license, managers of any type of staff of defendant, providers of physical therapy, occupational therapy, dietary consultation, pharmacy and drug services in effect at any time between January, 2002 through December, 2002.
D. All bonus or incentive plans which were in effect at any time between January, 2001 through December, 2003 for any employees of xxxxxxxxxxxx.
A. A complete copy of every policy of liability, excess and/or umbrella insurance and declaration sheets that could provide coverage for defendant xxxxxxxxxx, et als, should liability attach on the basis of the allegations contained in the Plaintiffs= Complaint.
A. All photographs, films, or video recording depicting xxxxxxxxxxx.
A. Any written statements signed or otherwise adopted or approved by the person making it pertaining to the claims in this litigation.
B. Any stenographic, mechanical, electrical or other recording, and/or transcription thereof pertaining to claims in this litigation.
11. DOCUMENT RETENTION/DESTRUCTION:
A. All documents comprising defendant, xxxxxxxxxx, et al, document retention and/or destruction policy in effect at any time between January, 2002 through December, 2004 and the present.
A. With regard to the security/surveillance system at place at xxxxxxxxxxxxx, while xxxxxxxxxxxx was a resident:
PLEASE TAKE NOTICE that the request is deemed continuing to and through trial for this case. Should you in the future discovery any items to any of the above matters of this request, you are required to notify Plaintiff=s counsel by way of supplemental answers to this request, or an objection will be made at trial for the use of information not revealed.
SAUL G. GRUBER, P.A.
III. Who to depose
There are many different potential people who need to be deposed in nursing home cases. They include Certified Nursing Assistants, RNs, LPNs, other key employees depending on the situation such as the pharmacist, the dietician, et al. In addition attending physicians need to be deposed, director of nursing, medical directors and in certain situations, upper management of the various corporations which run the nursing home or are holding corporations owning the corporations that run the nursing home. One of the best books on the market discussing these depositions and how to conduct them is Nursing Home Litigation : Pretrial Practice and Trials edited by Ruben J. Krisztal, Esquire and published by Lawyers and Judges Publishing Company, Incorporated. In his book, Mr. Krisztal spends hundreds of pages on the types of questions to be utilized and how to go about handling these depositions. It is recommended that this book be an immediate purchase by any lawyer who is handling these cases.
B. The Nursing Staff
It is important to note that most of the people who work in the nursing home are nursing staff comprised of registered nurses, licensed nurses and certified nursing assistants. The New Jersey Administrative Code does in fact address the rights and duties of such nursing staff and it is important to review same prior to taking their depositions.
Registered professional nurses have a minimum of 2 years of education up to and including a PhD or Masters in Nursing, in addition, they supervise each LPN and CNA, thus are responsible for their actions.
LPNs normally have 1 year of training and they supervise CNAs and are able to give medication, provide treatment and other direct care. CNAs are not nurses however do assist the nurses and provide hands on care to the residents.
Most attorneys who are handling these cases find that the CNAs are the ones who are more likely to help you get to the truth of what actually occurred with regard to the resident and the family that you are representing. In many situations the CNAs are transient in nature and it is permissible to obtain statements from these people which will help you formulate the basis and theme of your case. The regulations state that staffing requirements must be enough total staff (RN, LPN and CNA) to meet the overall nursing needs of the residents when deeming who to depose we must first look to these staff members.
Each nursing home is run by a licensed nursing home administrator who is responsible for everything that happens in the facility including adequate staffing. More than half of all administrators must report to corporate headquarters, however, many corporations do put controls on the expenses before the care for the residents. An ongoing theme in many of these cases is the financial decisions by absent corporate ownership putting profits before people. This theme prevents the administrator from providing good care and in essence handcuffs the entire medical and nursing staff.
Other employees who need to be deposed are physicians, nurse practitioners, pharmacists, social workers, dieticians, activity professionals, therapists (PT, OT and speech language), mental health professionals, clinical social workers, geriatric psychiatrists or psychologists and dental care providers who also may have provided care to the particular resident in question. In addition, other depositions may include laboratory, radiology and other diagnostic services which have been obtained, especially in fall cases where issues of fractured hips and causal relationship of same.
Books have been written regarding how to depose these people, however, this firm has always attempted to inquire of the witnesses not only the facts of the specific claim being brought, but also in general any complaints they may have had at the nursing home as well as the other issues surrounding the case. We call these the lower level medical providers and good depositions of them normally will create the basis for the entire claim. Once again, it is essential that these depositions are video taped as should their recollections be different than the Director of Nursing or Medical Director it can become quite compelling at the time of trial
C. Deposing the Director of Nursing and Medical Director
Numerous specific issues that you should address with the Director of Nursing include understaffing, false record keeping, connecting understaffing to residents' injuries, discuss the OBRA regulations set out in 42 CFR section 483. More importantly discuss with the Director of Nursing the following topics:
D. Deposing the Medical Director
42 CFR section 43.75I requires that all nursing home facilities have a physician serve as Medical Director of the facility. This Medical Director must oversee the implementation of policy and procedures in the facility and coordinate the entire medical care of the resident. There may very well be an issue as to whether the Medical Director is an independent contractor or direct employee of the nursing home. Also please keep in mind that if the Medical Director also acted as an attending physician, then any claim you have against this Director as an attending physician would clearly fall under the independent contractor status and he would not be covered under the policy for the nursing home.
Issues to be discussed with the Medical Director involve the responsibility and policies and procedures for the following topics:
Once again, it is important to always discuss the OBRA regulations with all employees of a supervisory capacity in order to determine and prove that OBRA is the standard of care, as you will be met quite often with defense experts indicating that it is not.
E. Deposing the Administrator
It is important to realize that every nursing home has a Nursing Home Administrator who in many cases has no medical. Although this presents issues as to whether the Administrator can discuss the actual medical care received by the resident, they absolutely must be familiar with the state federal regulations governing nursing home compliance. Once again, it is important to discuss the OBRA regulations and how they regulate the nursing home. It is rare if not impossible for a Nursing Home Administrator to ever deny the fact that the OBRA regulations are the standard of care and applied to their nursing home.
Topics which should be discussed with the Nursing Home Administrator include the following:
F. Deposing the Nurses and CNAs
When deposing the individual nurses and CNAs this is much more medically based as opposed to administratively based. Although it is important to again discuss OBRA to prove this is the standard of care, these depositions are much more fact sensitive regarding the treatments when and how it occurred with regard to the particular patient. These depositions should be tailored more specifically to your individual case.
G. Other depositions
Other depositions that should be obtained are those of the attending physicians regarding their duties at the nursing home, relationship with the nursing home, and specific treatment of the resident plaintiff. In addition, in the appropriate case additional depositions of corporate representatives should be obtained regarding the procedures and polices of the nursing home and the corporate objectives of the nursing home. You will be met with much objection to these type of depositions, however, if the first round of depositions are done appropriately this will give you the ability to "climb the corporate ladder". A full day of seminars can be utilized on climbing the corporate ladder and there is simply not enough time to discuss this very important issue at this point.
H. Deposing the expert
As in every non-nursing home case deposing the expert is important as it sets the table for your themes at trial. There are many, many ways to depose the expert and in all likelihood most members of the panel have different approaches to deposing the expert. One of the most important things that will occur in deposing an expert in a nursing home abuse and neglect claim is having them agree that the standard of care is in fact set out in the OBRA regulations as well as the state regulations as detailed earlier. Quite often you will be met with disagreements to this and it is important to be very specific with the expert as to the basis for their opinion. If in fact the expert continues to argue that the federal regulations and state regulations do not represent the standard of care, then you may be in a position to have their opinion in as a net opinion. The reason for this is they will not be able to present any evidence of the standard of care, thus their opinion will become vulnerable.
Prior to taking the expert's deposition, as well as the Director of Nursing, Medical Director and Nursing Home Administrator, it is important to be very prepared. It is suggested that you have a separate "trial legal notebook" which will contain all of the regulations, statutes and cases interpreting the statute so that you will then be able to have everything at your fingertips. In fact, our office routinely will have the portions of the chart where negligence appears to have occurred and deviations appear to have occurred, highlighted with copies of the actual OBRA and state regulations attached to it. Then the questions can be asked of the expert specifically to those issues showing the standard of care at the same time. This can be very compelling and quite often can cause the expert to look foolish if they simply continue to be an advocate for their side.
It is also encouraged that you "know your expert". There are numerous ways for attorneys to obtain information about their expert whether it be simply going on the internet or obtaining prior depositions and speaking with other attorneys who have deposed these experts. It is essential to understand and know your expert's mindset prior to taking the deposition.
When obtaining expert depositions, as well as the Medical Director, Director of Nursing, and Administrator's depositions, it is a good idea quite often to separate their deposition into 2 distinct phases, one is the concept phase and the other is the specific medicinal phase. In other words, find out their beliefs on nursing homes, how they are to be conducted and what the standard of care is in general, then you can begin to limit your questions to the specific case at hand. Quite often you will find the opinions of experts regarding nursing homes in general do not comport with their opinion in the individual cases.
The end result is the depositions are tedious and hard work in nursing home litigation and will be very expensive. It is important that you are well prepared or else your case will certainly fall apart.
IV. Pulling it together – the settlement
Once all of the depositions have been conducted and expert reports have been completed it is important to spend a few days reviewing your claims and putting a settlement package together. This is not like a standard personal injury case in that you should review the records in detail and send what amounts to a brief showing all of the facts in support of your claim and citing to those facts. Cite to the deposition transcripts, OBRA regulations, state regulations as well as the Nursing Home Bill of Rights. It is not necessary to use all trial strategy or reveal every smoking gun which you may want to hold for trial, however, it is important to have a package available for the defense attorney and their adjuster showing how you intend to prove your claim and why it is overwhelming.
You will find that the adjusters handling these cases are very intelligent and understand the law and what is needed to prove a nursing home case. Do not forget that the nursing home statute contains a fee shifting provision which means that should you prevail in your claim the judge must award attorney's fees. This is a powerful tool in negotiating in a nursing home case.
We must be diligent in handling these cases and spare no expense and no time. Although they are very expensive cases to bring you are helping people who cannot help themselves and that is in essence what trial lawyers should be doing.
PREPARING FOR THE NURSING HOME TRIAL
The age old saying for all trials that the most important thing is "Preparation, Preparation and more Preparation" is particularly true for Nursing Home Abuse cases.
The goal is to make an orderly presentation of what seem to be the facts that are in issue. In such cases, there are many documents as well as regulations which need to be explained to the jury in an orderly and thematic way to maximize the presentation. This is essential to convince the jurors and inflame them to reach an adequate plaintiff's verdict.
II. DAUBERT CHALLENGES-DEFEATING THE EXPERT
In Nursing Home cases we see many many experts, therefore challenges to some of these experts are necessary and expected. Experts are utilized in Nursing Home cases for various issues regarding both liability and damages. It is not uncommon in a Decubutus Ulcer (pressure ulcers) case to see experts regarding nursing, nutrition, and staffing as well as damages experts regarding pain and suffering and causal relationship. Thus it is fully expected that the defense will depose virtually all of Plaintiff's experts and attempt to challenge their opinions as being either not within their expertise, not scientifically reliable, or (the new favorite) a Net Opinion.
It is essential that a Scheduling Order be entered by the Court prior to any discovery taking place in order to properly prepare for these Daubert Challenges and motions to strike experts. This way the attorney is able to deal with expert challenges well before trial, this if granted it does not cripple the Case. Keep in mind that the prevailing thought is that defense attorneys only challenge these experts, however it is incumbent on all Plaintiff's attorneys to also make these motions and attempt to limit the testimony of the defense expert to only issues they are competent to render an opinion.
In Certain County's the Court requires a Ferreira Hearing to finalize any objections to the Affidavit of Merit. At this conference, the attorney should request a scheduling order with should set forth the specific an definite dates by which challenges to testimony or motions to strike and Daubert challenges must be filed by both parties. This should be done to flush out in advance any attempts by the other side to limit, challenge, or strike testimony regarding issues of both liability and causation. This is also especially important in Nursing Home cases where both the Nursing Home administrator and Director of Nursing (both normally direct parties) will attempt to give "factual testimony" on opinions that are not within their province. It is important to eliminate and strike those opinions on standards of care, which can be done pursuant to the scheduling order.
The most common challenge for a Daubert standpoint will involve issues of causation, particularly with respect to infectious disease issues, sepsis, effects of malnutrition, dehydration and other conditions which resulted in the ultimate injury or death of the resident.
One of the primary considerations of whether to present a daubert challenge or when to do so, is to consider that if you are successful in the pretrial challenge of a critical expert, it may lead to the defense arguing for an adjournment to trial, thus it is important to know the judge and court you are trying the case in front of. .
III. DOCUMENTS AND ADMISSIBILITY
Nursing Home Abuse and Neglect cases, unlike many other personal injury cases, are document intensive. Thus, it is essential that you make a determination as to the admissibility of relevant documents that you will need to prove your case. This assessment must be done at least 90 to 120 days prior to trial, so that a chart can be created with a complete listing and index of all documents that you intend to admit. IN the chart it would be a good idea to also have a column identifying the requirement for admissibility and the witness you intend to utilize in laying the foundation. Hopefully this will lead to stipulations of many of these documents. As an aside, not only should you obtain a color copy of the chart, but arrangements should have been made for an inspection of the original chart by your administrative expert.
As in all of your cases, any demonstrative evidence you intend to use, whether admissible or not, should be pre-marked. In addition, this office will send copies or descriptions of all illustrations, animations, or use of mannequins to defense counsel well before the trial to avoid surprise motions during the trial. It only takes one time to have vital and expensive material barred from a trial to convince the attorney that this is advisable!!! Although, this gives the defense attorney some insight into your trial strategy, it allows motions for admissibility to be ruled upon, and then the losing party can correct the problem so that the important evidence can be given to the jury.
As stated previously, there are a number of State and Federal statutes and regulations which it can be argued serve as the standard of care in Nursing Home Cases.
Virtually all Long Term Care Facility administrators and Director's of nursing will all admit these regulations comprise the standard of care; however the defense experts will fight that concession on a regular basis. It should be argued, in those situations where the Court will not allow you to admit the various statutes as the standard of care, that violation of same is either evidence of negligence or negligence per se. In all of the above cases, a motion should be filed prior to the trial asking the court to take Judicial Notice of the Regulation, statute et. al. Quite often a hearing will be scheduled prior to the trial for such Judicial Notice and should be pursued in every claim.
One of the hardest problems to combat in this type of litigation is where the defense simply does not turn over all the documents requested. There are many national chains, whose home office simply will not allow the production of all documents. Motions to compel must be filed on a regular basis, and Motions for Sanction should be sought in all cases where the documents are not turned over. The documents are what drives these cases and Plaintiff's attorneys must be diligent in obtaining them prior to trial.
IV. PREPARING THE PLAINTIFF'S FOR TRIAL
Preparation for trial from the Plaintiff perspective in Nursing Home cases truly begins at the moment the initial intake is completed. It is a fatal mistake to wait until the weekend before trial to start preparing the case for trial appearance and testimony. In many of these cases the true plaintiff and victim of abuse is the elderly and quite often are not alive at the time of trial, thus the Jury may feel guilty or reluctant to give substantial verdicts unless you give them a reason to do so. Beware the family of a deceased victim whom took no action to help the victim, failed to visit, and have ulterior motives for pursuing the cases.
In preparing the witnesses to testify in these cases, careful attention must be paid to the witnesses' demeanor, dress and attendance at trial. Decisions must be made as to who will be attending the trial on behalf of the family and be aware of the defendant possibly preparing a Notice in Lieu of Subpoena for the family members in the court room to testify at trial. If there is a family member that would not be beneficial on the stand, simply don't have them come to Court. In addition, a determination must be made as to which witnesses will testify regarding the different exhibits, including experts. These decisions must all be made well before the actual trial date.
V. TRIAL THEME AND STRATEGY IN NURSING HOME ABUSE CASES
During the entire discovery process, a variety of choices for theme development will emerge. Some of the more common themes can be woven into every nursing home case and tailored to the individual facts and circumstance of your particular case. In the standard personal injury case there is a tendency to focus theme development and issues on the victim and argue regarding the abuse and neglect suffered by this defenseless victim. Although it is important to focus somewhat on the resident and the breach of trust and betrayal themes, the larger verdicts which have been awarded in these cases tend to be generated by anger. In order to tap into that feeling with jurors, as well as the judiciary, the focus must be on the conduct of the defendant with emphasis on the abuse and neglect aspect coupled with the argument that the Nursing Home is placing profits over patient care. "Profits over People" is a central them in many of these cases and through out the entire trial this them should be applied and utilized in terms of order of witnesses, proof and presentation the focus must remain on the facility.
It is important to introduce the jury early on to the powerful elements of the proof, by both testimony and demonstrative evidence. You must keep the jury focused on the defendant's failures and empower the jurors in their belief that these are the types of individuals who need to be taught that people are more important than profits. It is important to combine witnesses from the defense who will set the stage for your argument that this is an institution that cares more about money then people. Correlating these selective individuals to take the stand first can win the day prior to any expert testimony. Also make sure you choose the initial witnesses that will also lend themselves to the admissibility of the most damaging documents, especially if you can show falsification.
The applicable statues, both federal and state, and administrative codes should be utilized as a road map, or a list of rules, showing how the defendants repeatedly violated the rules with impunity and lack of caring for the victim. Also keep in mind that although demonstrative evidence is necessary in these trials, try to avoid overloading the jury which could prove to desensitizing the jury to the actual harm.
Preparation, Preparation, Preparation in essential in handling the trial of the Nursing Home Abuse and Neglect Claim.