United States: Attacking The Plaintiff's Nursing Home Malpractice Case Through Effective Discovery

It is probably impossible to provide a list of all of the documents that defense counsel should attempt to preserve and set aside in anticipation of the plaintiff’s request for production of documents. However, any list of such documents should include the following:

• Programs, textbooks, manuals or other materials used in connection with training given to all employees of the facility.
• Copies of all complaints made to the nursing home regarding treatment, abuse, or injuries sustained by residents of the nursing home.
• Copies of records of all safety-oriented in-service meetings held at the nursing home.
• Copies of all weekly census sheets from the time of the plaintiff’s admission until the time of final discharge.
• Copies of the nursing policy and procedure manuals in use during the time the plaintiff was a resident of the facility.
• Corporate policies regarding hiring, retention, and termination of employees.
• Copies of any and all policies of insurance in effect during the time alleged in the plaintiff’s complaint which would cover the incident in question.
• Copies of the nursing home’s policies and procedures regarding investigations of accidents or incidents involving injuries to residents.
• Copies of the personnel files for all employees responsible for the plaintiff’s care.
• Copies of the State Operating Manual (SOM) for the facility in question.
• Copies of all licenses and/or certifications regarding the nursing home in question.
• Copies of facility files maintained with respect to documents relating to government licenses and inspections, inspection records and results, complaints and follow-up reports or audit reports.
• Copies of the staffing schedules for all personnel who were involved in the care and treatment of the plaintiff.
• Copies of any planned staffing schedules.
• A copy of the entire business or administrative file relating to the plaintiff.
• Copies of any contracts or agreements by and between the defendant nursing home (or its affiliated companies) and the plaintiff.
• Copies of any and all records pertaining to financial matters between the defendant nursing home and the plaintiff, including billing for nursing or nursing home services, invoices, records of payment, etc.
• State and federal survey reports, findings, etc.
• Physician call sheets.
• Medical director contracts.
• The plaintiff’s entire chart.
• Notes regarding family and resident meetings.
• Visitor logs governing the time frame in which the plaintiff was a resident of the facility.
• All advertising regarding the nursing home, including brochures, pamphlets, newspaper advertised, direct mail advertising or solicitations, the text of radio and television advertisements, etc.
• Investigative reports by state/federal inspectors.
• All other investigative reports regarding the incident giving rise to the lawsuit (police reports, social services reports, internal reports, etc.)
• Medicare assessment schedules.
• Resident assessment protocols.
• Pressure ulcer forms.
• Investigative reports regarding employee background checks.
• Minimum data set (MDS) sheets.
• Comprehensive resident assessment forms.
• Photographs of the resident (this type of evidence can be particularly damaging to a plaintiff’s case. Photographs showing a smiling, well cared for plaintiff can go a long way toward debunking the plaintiff’s current claims that the nursing home was a joyless prison).

Defense counsel should attempt to assist the administrator of the nursing home in gathering the documentary evidence outlined above. If done in the early stages of litigation, defense counsel will have an excellent opportunity to review all of this documentation and get a handle on issues which may become a problem later in the litigation. By being involved in the collection of the foregoing evidence, defense counsel can also carefully analyze the content of these documents and obtain a clear picture of the plaintiff’s health, care and treatment long before the plaintiff’s attorney has had an opportunity to obtain and review the very same documents.

It should also be emphasized that any physical instrumentality which was involved in the incident which gives rise to the plaintiff’s claim must also be collected and preserve. If the plaintiff is claiming that he or she was injured as a result of a defective wheelchair or walker, or the improper application of a posey restraint, those physical pieces of evidence must also be preserved.

Since the records outlined above tend to be vitally important to the defense of a nursing home malpractice action, every effort must be made to separate those documents and keep them in a safe place. Defense counsel should give specific instructions to the nursing home staff concerning the retention and storage of documents or physical evidence. All documents must be placed in a secure location. All document storage containers must be properly marked so as to avoid future destruction. Defense counsel cannot count on the fact that the employees of the nursing home will still be employed at the time of trial. Nursing homes not only have a constantly changing resident population, but also a constantly changing employee population. This revolving door pattern holds true for management employees as well as hourly employees, and defense counsel may well find that the administrator of the nursing home as left the defendant’s employ well before trial. Proper labeling and storage will ensure that the documentary evidence will remain secure long after those who gathered it are gone.

For years the authors have been advocating that administrators of long-term care facilities conduct exit interviews with all employees who have been terminated, have resigned, or have retired. During that exit interview, the employees should be asked if they performed their jobs appropriately and accurately and if they provided good care to the residents of the facility. The exiting employees should be asked if they saw any problems while they worked at the facility and should indicate, in response to questioning from the administrator, that they would have reported any problems if they had seen them. During the exit interview the administrator should inquire if the exiting employees reported any problems to their supervisor or the administrator and to specifically ask for the names of each supervisor and administrator who was responsible for managing the exiting employees. In addition, the exit interview should generate contact information regarding the ex-employee, i.e., the name, address and telephone number of an individual who will always know how to contact the ex-employee at all times.

It should be apparent that this type of exit interview, though time consuming, may make the difference between winning and losing at the time of trial. An ex-employee who has indicated during an exit interview that he or she performed his or her job appropriately and provided good care, never saw any problems at the facility, and would have reported any problems if he or she saw them is incredibly useful for impeachment if the plaintiff’s attorney later contacts the ex-employee and persuades that person to testify about resident abuse at the time of trial. If defense counsel is fortunate enough to be representing a facility which has engaged in the practice of exit interviews, defense counsel should obtain copies of the interview notes, questionnaires and statements obtained during those exit interviews. Every effort should then be made to contact those ex-employees and solidify their positive statements regarding the defendant nursing home.

After meeting with the nursing home owner and administrator, defense counsel should immediately conduct interviews of all current employees and all former employees that can be located. These interviews should most certainly occur well before the time that defense counsel must provide those names to the plaintiff’s attorney. The purpose of interviewing current and former employees is to launch a preemptive first strike against the plaintiff’s theory of liability; to work with the employees in an effort to bolster the defense of the case and to eliminate, as practically as possible, the "loose cannons" that can ultimately sink the ship.

When conducting interviews of current and former employees, defense counsel should obtain basic information regarding the employees, including their job title and description, their daily activities at the facility, their specific involvement in the care and treatment of the plaintiff, and their thoughts and impressions regarding their employer. All employees should again be asked if they provided appropriate care to all residents at the facility, if they noticed any problems during their tenure at the facility, if they reported any problems during their tenure at the facility, the identity of anyone else who has information which may prove useful in defending against the plaintiff’s claim, and any other information which may be used to counter the plaintiff’s claims of fraud, abuse, neglect or maltreatment. During the interviews, defense counsel should reiterate to the employees -- both former and current -- that they may be contacted by attorneys representing current or prior residents of the facility and that they should immediately report such contact to the administrator. All employees should be encouraged to decline requests for ex parte interviews. It should be explained to the employees that interviews, or depositions, may be given in the presence of the nursing home’s management and/or management’s counsel. Employees should be given examples of the types of questions that are generally asked during ex parte interviews and they should be shown how seemingly innocent responses to interview questions may be turned into damaging evidence against the facility.²³

If defense counsel is inclined to follow only one piece of advice regarding the defense of long-term care litigation, it should be that an attorney for the defendant long-term care facility must thoroughly -- and sometimes tediously -- review all of the documents outlined in Section VII above. When dealing with a plaintiff’s attorney who has some familiarity with long-term care litigation, defense counsel can rest assured that the plaintiff’s attorney will request copies of all of the documents listed above (or, in some cases, may already have copies of many of the previously listed documents before the lawsuit is even filed). Since these documents will ultimately find their way into the plaintiff’s attorney’s hands, it is imperative that defense counsel read the records and understand their content prior to disclosure.

If the plaintiff’s attorney has decided to invest any time or money at all in the prosecution of the case, the plaintiff’s records will be carefully reviewed, analyzed, collated and organized. Care plans will be compared to nursing notes to determine whether the care plan was timely modified to reflect the residence’s changing condition. Doctors’ orders will be compared to nursing notes, nursing flow sheets, care plans, and other documents to determine if orders were followed. Medication administration records will be checked. Indeed, it will often appear as if the focus of the plaintiff’s case is not on resident care, but rather on the documentation of that care.

In order to attack the plaintiff’s theories regarding poor care, the defense attorney must be extremely familiar with the plaintiff’s chart, its strength, and its weaknesses.²⁴ A careful review of the records which are to be produced to the plaintiff’s attorney may often reveal fatal flaws in the plaintiff’s theory of the case. For example, perhaps the plaintiff is claiming that the nursing home was not adequately staffed to meet the needs of the residential population and that the plaintiff was subsequently injured as a result of the improper staffing. A review of staffing records and records of the head count of the patient population may reveal an arguable short staffing situation for only a few days during the plaintiff’s extended stay and/or that the arguable short staffing did not coincide with any of the care and treatment issues which have been raised in the plaintiff’s complaint. Or, perhaps the plaintiff is claiming that she developed decubitus ulcers as a result of inattention by the nursing staff and the staff’s failure to properly turn her in bed. The plaintiff points to minimal entries in the records which state that the plaintiff was turned in bed. A review of the records may reveal that although there are few notes specifically stating that the plaintiff was turned, there are multiple daily entries indicating that there was patient contact which resulted in a change in the plaintiff’s position, i.e., notes which indicate the plaintiff was taken to the washroom, placed in a chair, moved to the day room, repositioned so the sheets could be changed, etc. These are just two examples of why it is so vitally important to define the issues, to delineate the defenses, and to digest the records.

Prior to producing any records to the plaintiff’s attorney, defense counsel must carefully prepare a duplicate copy of all records for inclusion in his or her own file. Several simple procedures will make the repetitive review and use of these records inherently more efficient. To begin with, all records should be copied in color. Some originals, such as Minimum Data Set (MDS) sheets have different colored backgrounds which will not appear on simple black and white copies. In addition, different shifts may use a different color of ink for charting. This important distinction will also be obliterated with simple black and white copies.

All documents which are produced should be numbered front and back. An identification number or code should then be placed on each document. The coding system should be as simple and straight-forward as possible.

After the documents have been numbered and coded, a log of privileged immaterials should be created. Prior to any document production or inspection, privileged documents can be replaced with sheets explaining the grounds for their removal. Such a system has its advantages, since it abrogates the need for further review by counsel prior to each and every production of the documents, the documents can be produced without the worry of inadvertent disclosure, and non-attorneys can be responsible for observing inspections which may be performed by the plaintiff’s attorney.²⁵ Special thought should be given to the creation of a production log which will list when and to whom a document has been produced. Such a log will allow the defendant nursing home to instantly know whether one of its documents has ever been produced and under what circumstances. A production log can also designate which material is to be returned to the defendant at the completion of the litigation pursuant to a protective order. Production logs are also extremely useful when a particular facility is or has been the subject of repetitive litigation.

Once the documents have been coded and logs have been created, the documents should be organized by admission, provider, and type of care. The documents should be used to prepare a summary of the regulatory history of the facility. A time line containing information regarding the plaintiff’s entries and exits from the facility should be prepared. In addition, an issue based chronology that reconciles various portions of the medical record should also be prepared. These tools of summation and illustration will prove invaluable when attempting to refute the plaintiff’s claims at the time of trial.

In order to prepare an effective defense to the plaintiff’s claims, defense counsel must issue a comprehensive request for production of documents addressed to the plaintiff. Such a production request must include a request for copies of all records from the defendant facility regarding the plaintiff; a request for copies of the plaintiff’s medical records from all other hospitals, ambulances, clinics, doctors, or long-term care facilities where the plaintiff was treated; a request for copies of day in the life films or photographs of the plaintiff; a request for data regarding wage loss or loss of future earnings, if applicable; a request for all information in the possession of the plaintiff’s attorney from ATLA or other information banks; a request for all information in the possession of the plaintiff’s attorney that has been compiled and received from other lawyers or state or federal agencies; a request for any information that the plaintiff has regarding the defendant nursing home, the director of medicine for the defendant nursing home, or the corporation which owns and manages the nursing home; any information in the plaintiff’s attorney’s possession which has been obtained from any worker’s compensation court or tribunal (including information about former or current employees received from those sources); a request for any information obtained from the union (if defense counsel is dealing with a unionized home) regarding the subject facility and its patient care records; and copies of any statements taken from any witnesses, including but not limited to the plaintiff’s family members, doctors, current and former nursing home employees, social workers, and medical directors.

One of the best ways to attack the plaintiff’s case is through the crafting of specially tailored interrogatories. Interrogatories addressed to the plaintiff in a nursing home malpractice action should ask for the names and addresses of all potential witnesses in the case; the names and addresses of every individual who provided care for the plaintiff at the defendant nursing home; the names and addresses of all family members who were involved in the plaintiff’s care; detailed information regarding the involvement of family members in the plaintiff’s care; information about all of the plaintiff’s prior and subsequent medical care; information concerning all contacts by the plaintiff or the plaintiff’s family with administrative personnel at the nursing home; all information regarding pre-existing medical conditions, frailty, or weakness; and detailed information regarding how and why the plaintiff chose the defendant’s facility.

A detailed set of interrogatories, when coupled with an extensive request for production of documents, can give the defense attorney a very good idea of the nature and extent of the plaintiff’s claim, and how the plaintiff intends to present those claims, well before the depositions of the plaintiff and the plaintiff’s expert witnesses. Responses to detailed interrogatories and requests for production of documents will also allow the defense attorney to identify those areas of potential weakness in the plaintiff’s case and may help frame the issues to be raised in defense of the claim.

There are a number of fact witnesses whose depositions will, in all likelihood, be sought by the plaintiff’s attorney. Individuals associated with the long-term care facility who can expect to be deposed include the medical director of the facility, the nursing home administrator, the owner of the nursing home, the director of nursing, the activity director, licensed practical nurses, therapists (physical, occupational, speech), dieticians and certified nursing assistants. All of these individuals must be carefully prepared prior to their depositions. The theory of defense should again be explained to these witnesses and their expected testimony should be thoroughly explored. Keeping a tight rein on these witnesses, and preparing them to effectively answer the questions posed by the plaintiff’s attorney, can go a long way toward weakening the plaintiff’s case. A united defense, presented by a united team of the defendant’s employees, is the plaintiff’s attorney’s worst nightmare.

Certainly, defense counsel will want to take a number of depositions in an effort to solidify the defense posture of the case and explore the weaknesses of the plaintiff’s case. Special consideration should be given to deposing the plaintiff’s treating physicians²⁶ and employees from other medical or nursing facilities where the plaintiff has resided. Special consideration must be given to deposing former disgruntled employees who have been identified by the plaintiff. If the defense attorney is in possession of exit interviews or other statements which may cast aspersions on the current testimony of the witness, a tactical decision may be made to depose the disgruntled witness, confront him or her with the damaging prior statement, and effectively eliminate that individual as a witness at the trial of the case. Some thought should also be given to deposing state regulators and/or surveyors in an effort to understand precisely what is involved in their surveys and assessments of the nursing home in question. Such depositions may prove to be the opportune time to gather information regarding the weaknesses and inherent drawbacks in the survey system. All such information can then be used to the defendant’s advantage when the plaintiff’s attorney attempts to use the survey process or survey results to establish the standard of care.

Perhaps the most important deposition the defense attorney must take is the deposition of the plaintiff. The plaintiff’s deposition should be taken as soon as practically possible after defense counsel has engaged in a careful and systematic review of all of the records in order to commit the plaintiff to a specific set of facts and listed injuries and to restrict the plaintiff in the development of his or her case. Defense counsel must coalesce all of the knowledge he or she has gained through months of client interviews, document reviews, statute and regulation reviews, and expert consultations to prepare a thorough and effective outline designed to elicit vital information from the plaintiff.

In almost all long-term care cases, the plaintiff will be elderly or, in some cases, mentally disabled (indeed, some nursing home even have wards set aside for mentally handicapped individuals). One of the unique issues that the involvement of elderly or mentally handicapped plaintiffs raises is competency. Defense counsel should not assume that the plaintiff is competent to testify. If, after taking the plaintiff’s deposition, good grounds exist, defense counsel should move to have the plaintiff declared incompetent to testify. Having the plaintiff declared incompetent to testify can have a major impact on the defense of the case and should seriously be considered in those cases where the plaintiff was the only witness to the incident which allegedly caused his or her injuries.

After the depositions of the plaintiff and all the other fact witnesses have been taken, defense counsel should schedule the depositions of plaintiff’s expert witnesses. Prior to taking the deposition of the plaintiff’s expert witnesses, defense counsel should network with other defense attorneys who have been involved in the defense of long-term care claims in order to ascertain whether the plaintiff’s expert witnesses have testified with some frequency on behalf of plaintiffs in other cases. Information should be obtained from other defense attorneys regarding the demeanor, forthrightness, credibility, and veracity of the plaintiff’s witnesses. Every effort should be made to obtain prior deposition or trial testimony of the plaintiff’s experts. This, again, can be accomplished through networking with other defense attorneys.

During the actual deposition, the plaintiff’s expert should be questioned regarding credibility issues, including his or her billing on the file, the time he or she devotes to testifying at both trial and deposition, and any relationship this particular testifying expert has had with the plaintiff’s attorney in the past. Careful attention must be paid to determining precisely what the expert reviewed and, just as importantly, what the expert did not review. The defense attorney’s questioning should be designed to determine whether the expert who has been proffered by the plaintiff is the appropriate expert to prove that particular aspect of the case, i.e., is the plaintiff attempting to use a dietician to prove a claim of negligent nursing care? Defense counsel must find out if the plaintiff’s expert has ever failed to qualify in other cases. If the answer is in the affirmative, every effort should be made to obtain as much identifying information about those other cases as possible. The deposition of the plaintiff’s expert witness is the time to gather all the information necessary to support a Daubert motion later in the case.

The plaintiffs’ bar has, for some time, been united in its efforts to prosecute and win cases against long-term care facilities both large and small. The Association of Trial Lawyers of America (ATLA) maintains a data base of materials to be used by plaintiffs’ attorneys in the prosecution of nursing home malpractice actions. The attorneys who have begun to realize some astonishing successes in Texas and Florida and California are networking with each other, sharing ideas, information, and expert witnesses. The time has come for the defense bar to do the same.

The advantages of working together should be readily apparent. Defense attorneys who regularly defend long-term care facilities can share cutting-edge information regarding medical conditions that may account for physical infirmities regularly encountered by nursing home residents, theories of defense which have proven successful in other cases, "standard" nursing home interrogatories and requests for production of documents which have been instrumental in obtaining the information or documents necessary to defeat a plaintiff’s claim, information regarding expert witnesses routinely used by the plaintiffs’ bar, and, perhaps most importantly, information regarding expert witnesses who have a done a particularly good job for defendants in other cases. Sharing this information not only allows defense attorneys to remain at the forefront of the body of law involving long-term care facilities, but also cuts down on the time and expense involved in defending each case anew. Collective information is much more impressive, important and effective than information which is gathered and learned alone.

One way in which the defense bar may begin to share information regarding long-term care litigation is through the creation of electronic defense data base. Proposed interrogatories and requests for production of documents, requests to admit facts, particularly effective deposition questions, new case law, and information regarding experts used by plaintiffs and defendants could all be placed in an electronic data base accessible only to those members who have been provided with the proper access code. Having all of this information stored in a central location will allow for ease of access and ease of use. Any defense attorney with a computer and the proper access code could gain admittance to the data bank, search through it for whatever he or she is looking for, and then download the appropriate material.

It should be noted that electronic defense data bases are not without their drawbacks. First, there is a substantial cost involved in actually creating the databank and inputting the information necessary to make it a success. In addition, there are security issues involved -- nothing could be worse than to have a plaintiff’s attorney somehow gain access to the site and download the material contained therein. In addition, an argument could be made that any information which is placed in the electronic database is not subject to any applicable privilege which may otherwise be invoked to protect disclosure of that information. Despite these recognized problems, special consideration should be given to creating a centralized electronic data base for use by defense attorneys who specialize in the defense of nursing home malpratice actions.

Based on recent demographic trends, it is safe to say that defense counsel will see more and more nursing home malpractice cases in the future. The preparation of a successful defense for these cases begins early in the litigation. The defense must be vigorous and it must be thorough. In order to effectively refute the plaintiff’s claims of neglect or intentional harm, defense counsel must engage in a comprehensive system of discovery designed to identify and explore the relative strengths and weaknesses of the plaintiff’s case and the defendant’s case. Although reviewing the information contained in this article is no guarantee of a defense verdict, the authors hope that the information provided will certainly go a long way toward eliminating specious claims and increasing the successful resolution of legitimate claims.

1 Peter J. Strauss, et al., AGING AND THE LAW, p. 488 (1990).

2 Clifford E. Cardone, "Battling Nursing Home Neglect: Finding the Right Legal Pieces", 44 Louisiana B. J. 6, p. 509 (1997).

3 Strauss, et al., supra, pp. 487-488.

4 Cardone, supra, p. 509.

5 Strauss, et al., supra, pp. 487-488.

6 Cardone, supra, p. 509.

7 Frederick Miles and Kenneth Burgess, "Understanding OBRA 87 And Challenging Its Use As A Basis Of Liability", American Health Care Association 1998 Legal Defense Conference, November 12-13, 1998 (presentation).

8 42 U.S.C. Sec. 1396r(b)(1)(a).

9 42 U.S.C. Sec. 1396r(b)(2); 42 U.S.C. Sec. 1396r(c).

10 42 U.S.C. Sec. 1396r(g)(2)(A),(B),(C),(D),(E); 42 U.S.C. Sec. 1396r(g)(3)(A),(B),(C),(D).

11 42 U.S.C. Sec. 1396r(g)(1)(A).

12 42 C.F.R. Sec. 488.402(a).

13 42 U.S.C. Sec. 1396r(h)(1); 42 C.F.R. Sec. 488.404.

14 42 C.F.R. Sec. 488.406(b).

15 42 C.F.R. Sec. 488.401.

16 42 C.F.R. Sec. 488.402(d).

17 The deficiencies noted at a facility are set forth on a form called the HCFA 2567L. Some states, such as Michigan and Kansas, do not allow the facility to refute deficiencies on the face of the HCFA 2567L. HCFA itself has indicated that disagreements regarding deficiencies can appear on the face of the HCFA 2567L since it is a public document. When ever there is a good faith basis for a disagreement, a facility should state every point of disagreement on the HCFA 2567L, unless state law does not allow it.

18 Abt Associates, Inc., "Evaluation of the Long-Term Care Survey Process", December 1996.

19 Miles and Burgess, supra, pp. 24-26.

20 Id. at pp. 30-31.

21 Malcolm Harkins, "Liability Theories and Damages", American Health Care Association 1998 Legal Defense Conference, November 12-13, 1998, pp. 11-12 (presentation).

22 Miles and Burgess, supra, p. 33.

23 Ronald E. Bush and Dale R. Sisco, "Nursing Home Litigation: An Industry in Crisis", 40 For the Defense 8, p. 22 ( August 1988).

24 Bush and Sisco, supra, p. 21.

25 Donald K. Schoemacher, "Document Collection, Review and Production", 37 For the Defense 1, p. 12 (January 1995).

26 In many jurisdictions, defense attorneys cannot engage in ex parte communications with a plaintiff’s treating physicians, nurses, physical therapists, etc. If defense counsel is practicing in a jurisdiction which follows that particular rule, an effort should be made to gather information from the plaintiff’s treating physicians or the medical director of the nursing home by speaking through the doctor’s attorney. Short of that, the only way to avoid running afoul of the rule regarding ex parte communications is to take the physician’s deposition.