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The Troubled Climate of Nursing Home Care Part 2: Limiting Discovery in Nursing Home Malpractice Cases

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The Troubled Climate of Nursing Home Care Part 2: Limiting Discovery in Nursing Home Malpractice Cases

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nursing home negligence, nursing home neglect, nursing home staffing, nursing home discoveryNursing homes are affected by many challenges, many of which directly affect the quality of care and allegations of nursing home negligence. The challenges were highlighted by speakers at Preventing and Defending Long Term Care Litigation at The Conrad in Miami, April 4-5, 2011. I moderated a panel of defense and plaintiff attorneys and another legal nurse consultant. Here are some more of the main points of the conference:

1. Historically, plaintiff firms did not view geriatric patients as viable clients. The age, declining health and lack of earning capability made these unattractive clients.

2. This changed with some large verdicts, including one in California against Beverly Enterprises and one in Florida called Spilman. The $2.7 million verdict involved an infected pressure sore.

3. Media attention to the causes of nursing home abuse made the public aware of and express a generalized distrust of long term care facilities.

4. Plaintiff attorneys’ themes include profits over people, corporate greed, and abuse and neglect. Punitive damages became liberalized in the presence of a pattern of poor care and corporate notice and vertically integrated controlling corporate defendants.

5. Standard discovery requests include these documents: abuse and neglect reports, acuity reports, admissions file, budget/cost reports, business office file, census reports, corporate organizational chart, incident reports for the resident as well as all residents, inservice education reports, payroll documents, personnel files, policy and procedure manual, quality assurance reports, the medical record, Resident Council Minutes, staffing reports, surveys, time cards, turnover reports and weekly schedules.

6. Staffing allegations that plaintiff attorneys typically allege include: The nursing home defendants knowingly established staffing levels that created recklessly high resident to staff rations, including high resident to nurse rations. The nursing home defendants knowingly disregarded patient acuity levels while making staffing decisions, and knowingly disregarded the minimum time required by the staff to perform essential day-to-day functions and treatments. The defendants grossly understaffed the facility and/or failed to set an adequate budget, in violation of Federal and State law.

7. The plaintiff attorney may request a variety of documents related to staffing: daily staffing schedule, call in reports, replacement reports, survey deficiencies, PPD (per patient day)/internal staffing calculations, punch detail reports, budget line items, payroll reports, assignment reports, labor distribution reports, payroll analysis, key management indicators, staffing productivity reports, census reports, and pool agency vendor invoices.

8. The defense response to staffing allegations can focus on these points: did the staffing issues occur while the resident was receiving care? Is there a relationship between inadequate staff and substandard care delivered to that resident? (This is addressed by fact and expert witnesses. The plaintiff has the burden of proof to show that staffing issues were relevant to the medical negligence.) Is there notice to the controlling corporate defendant? (This is addressed by reviewing the survey history, Resident Council Minutes, hotline or 1-800 calls, and turnover reports.)

The information in this blog post is drawn from the slides and presentation of Ami Demarco, Esq. of Purcell and Wardrope and Eugene Giotto, Esq of Buchanan Ingersoll and Rooney.

Need help figuring out how an error occurred? Our legal nurse consultants work with medical records and attorneys to create chronologies, develop questions for depositions of defendants and suggest items to obtain through discovery. Give us a call. We’re here to help.

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