Tips for Defending and Traps to Avoid in Representing Nursing Homes

October 1, 2002

It is no surprise to anyone that Elder Abuse/Nursing Home litigation is on the rise. There are several reasons for the increase in this type of litigation over the last five years. First, largely fueled by the media, there is a public perception that nursing homes do not provide adequate care to their patients. Second, our population in general lives longer and therefore more people are available to become patients in the ever-expanding nursing home industry. Third, the current statutory framework strongly favors plaintiffs in Elder Abuse/Nursing Home litigation. Finally, enterprising and highly capable plaintiff attorneys have seized on the first three points to fuel the explosion in Elder Abuse/Nursing Home litigation. Below are five tips for the defense of nursing home litigation and five traps to avoid.

FIVE TIPS FOR THE DEFENSE

1. ATTACK THE COMPLAINT
Allegations relating to want on and willful misconduct, violations of Business and Professions Code section 17200, and, of course, punitive damages should be challenged if at all possible. The goal is to limit the available remedies and limit the theories on which plaintiff might proceed.

2. MEET WITH THE FACILITY STAFF EARLY AND OFTEN
It is vitally important to visit the facility as early as possible in the litigation. This allows defense counsel to get the "lay of the land" and also to meet with the staff members who had both direct and indirect responsibility for patient care - administrator, and director of nursing, as well as the charge nurse, certified nursing assistant, dietician, physical therapist, and anyone else who had direct patient contact. An initial meeting will allow counsel to size up witnesses, determine potential "weak links" and identify persons most knowledgeable for deposition at a later date. This initial visit should also be used to obtain all of the pertinent documents such as policy and procedure manuals, and reports related to facility staffing, as well as the patient's chart.

3. OBTAIN ALL OF THE PATIENT'S MEDICAL RECORDS
Counsel too often focuses on the records from the particular facility being represented. However, especially in elder cases, all of the medical records should be obtained, both prior to entering the facility and after leaving the facility, if any such records exist. These records help track the progression of any ongoing disease processes concerning the patient's health and will provide needed information for expert testimony. This information may also provide additional parties for inclusion and sharing in any potential exposure.

4. RETAIN EXPERTS EARLY
Consideration should be given to which particular fields will require expert testimony. Generally, experts will be needed in the following areas:

Expert on nursing home administration;
A nurse expert in working in skilled nursing facilities;
Appropriate medical specialists concerning the particular medical issues in question (i.e., cardiologist, urologist, etc.)

Retaining experts early will greatly assist counsel in developing theories of defense and prevent the dreaded scrambling for experts as trial approaches. Further, the experts can assist counsel in formulating discovery requests as the case progresses in order to ensure that the experts have all the information they need to opine on the appropriate issues at trial.

5. USE MEDICAL CAUSATION ISSUES TO YOUR CLIENT'S ADVANTAGE
Plaintiffs' counsel often focus on the issues of abuse and neglect, believing that those will carry the day for them with the jury. While issues of abuse and neglect are obvious concerns, the issue of medical causation is often one that provides a viable avenue for obtaining a defense verdict. Again, this is an area where expert testimony can be extremely beneficial for the defense especially when dealing with the common nursing home issues of falls and pressure ulcers.

FIVE TRAPS TO AVOID ON THE ROAD TO A SUCCESSFUL DEFENSE

1. AVOID ALLOWING YOUR CLIENTS' OWN POLICIES AND PROCEDURES TO SET THE STANDARD OF CARE.
Plaintiffs' counsel will inevitably seek production of the facility's policies and procedures manual. While such documents are most likely discoverable, their admission into evidence at trial should be challenged. The standard of care is to be determined by expert testimony, not by whether or not your client met the requirements of its own policies and procedures. It may well be that the policies and procedures set requirements that are far above the actual "standard of care."

2. AVOID "OVER TASKING" THE FACILITY STAFF.
A typical tactic of plaintiffs' counsel at depositions is to attempt to take a normal 8 hour working shift and break it up into individual component tasks that the caregiver is to undertake during any particular day. The caregiver obviously tries to be generous in time allocation for such tasks as feeding, bathing, massaging, etc. As such, when taking into account the number of patients to be dealt with, plaintiffs' counsel can easily take that 8 hour shift and place 12 hours worth of "tasks" within that shift, thereby creating an argument that the staff is overburdened. Careful preparation of the staff for deposition, including an analysis and breakdown of the individual tasks on a daily basis, can prepare the staff member for this slight of hand tactic at a deposition.

3. DO NOT ALLOW A DISGRUNTLED FORMER EMPLOYEE TO AFFECT THE CASE.
At the time of the initial meeting with the administrator, determine if there are any disgruntled former employees who might have any particular information concerning the patient. Ask to see the personnel records of all employees who worked with the patient in order to determine any potential "turncoat" employees before they are able to do any damage. If a disgruntled former employee is identified who may potentially be a problem, attempt to meet with that person early on to see if you can bring him or her back into the fold.

Given the nature of the turnover in the industry, there will always be former employees who had contact with any given patient. Identifying the reason the employee left voluntarily (or was terminated) and dealing with the former employee concerning that issue or issues head on, can go a long way toward ameliorating any concern for damage that the former employee might inflict. Further, if these efforts prove unsuccessful, a potential danger source in the case can at least be identified and dealt with as the case progresses through testimony of other current and former employees.

4. AVOID FIGHTING LOSING BATTLES WITH THE TRIAL JUDGE.
If at all possible, avoid being on the losing side of such things as motions to compel discovery responses, and motions for protective orders. In general, trial courts believe in full and complete disclosure during the discovery process. Admissibility at trial is another matter. Defense counsel is much better served by producing non privileged documents rather than interpreting an objection, which the trial judge will more than likely overrule. Rather, save the battle for the admissibility of that particular document at trial at which time the court will be more predisposed to listening to arguments on admissibility. Appearing unreasonable to the judge regarding discovery motions carries over to the trial and may adversely affect counsel's ability to win the court over on important pre trial motions.

5. BE OFFENSIVE, NOT DEFENSIVE.
The old saying that the best defense is a good offense was never truer than in defending nursing home claims. Defense counsel must be aggressive from voir dire to closing arguments, stressing the strong points of the case (i.e., there was no abuse, there was no neglect, there was no medical causation). In addition, make sure that any bad evidence in the case, which you know is going to come out anyway, is brought out by you as opposed to plaintiffs' counsel, thereby showing the jury that defense counsel is going to be upfront regarding all the issues in the case. Trying the case from your toes, and not from your heels, shows confidence in your client, confidence in your case, and confidence in the verdict.