Home | Business News | Browse by Publication | T | Trial

How to prove management flaws in nursing homes: diligent discovery will generate documents that show systemic failures in a facility.

Article Excerpt
When management oversight fails, nursing homes may deliver dangerous health care. To prove management failure, plaintiff attorneys must show what happened and why. But the defense commonly tries to restrict the plaintiff's access to evidence that reveals systemic problems in the nursing home organization.

Continuing legal education programs for defense attorneys advocate the following tactic:

I can't tell you how much I would encourage you defense attorneys to not give over any document willingly, other than the chart.... We find 50 percent of the time that plaintiff's attorneys ask for something, we give them an excuse why we can't give it to them--because it's privileged, or this or that.... So you have to streamline, deny documents. (1)

Plaintiff attorneys who sue nursing homes must be tenacious in discovery. Aggressive discovery will expose the underlying cause of the resident's injury or death and the nursing home's true corporate character, to which the courts will respond.

In Fuqua v. Horizon/CMS Healthcare Corp., the defendant nursing home refused to disclose any testimony or documents, including evidence to which it had not objected. (2) Ultimately, the court imposed litigation-ending sanctions against the defendant because it had "consistently attempted to thwart [the] plaintiff's efforts to obtain discovery at almost every turn." (3)

The case law on production of nursing home documents varies, and success in obtaining the documents can depend largely upon the jurisdiction where the case is presented.

Employee lists and files

Employee lists identify witnesses to the events in question and the general care the nursing home provided. In Ex parte Coosa Valley Health Care, Inc., the court held that the plaintiff was entitled to discover the complete list of employees who worked at the facility during the last four years the plaintiff lived there.

The list "would be a reasonable way for [the plaintiff] to investigate and prove his claims of negligence, wantonness, willfulness, and/or breach of a contractual duty ... to provide adequate hiring, training, staffing, etc., of its personnel." (4)

Employee personnel files may contain work history, evaluations, background checks, criminal records, applications, pay status, disciplinary actions, letters of praise, health care information, vacation requests, intra-company disputes, resignation letters, licensing information, continuing education class transcripts, and certifications that show characteristics of the employees responsible for the residents' care.

Plaintiff lawyers can use these files to show that the facility negligently hired, retained, or supervised its staff. The files may also contain an overworked employee's complaints related to short staffing, the seminal issue in most nursing home cases.

Courts have rejected defense objections based on employees' privacy rights and have required production of employment and personnel records. In Alterra Healthcare Corp. v. Estate of Shelley, the court held that an assisted living facility lacked standing to deny a discovery request for personnel files by asserting employees' constitutional right to privacy. (5) In North Florida Regional Hospital, Inc. v. Douglas, the court held that a hospital did not have standing to assert the privacy...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!