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Discovery in


Nursing Home Cases by Jonathan E. Goldberg


The discovery tools utilized in nurs-


ing home malpractice cases differ significantly from those used in a typical medical negligence case. Documents unique to the nursing home setting should be identified and obtained, and these will assist in the investigation and prosecution of your case. Furthermore, there are individuals in the nursing home hierarchy who may possess in- formation helpful to your case – they should be considered for deposition. A familiarity with the terminology used with nursing homes is crucial. For example, persons inhabiting nurs- ing homes are referred to as residents and not patients. Residents may be in a nursing home for long-term care or for rehabilitation. The rehabilitation resident may be a short stay or long


stay resident. Using the correct termi- nology in discovery will convey your knowledge of the subject matter and prevent a sophisticated defense lawyer from blocking an otherwise appropriate discovery request.


Written Discovery to the Defendant Nursing Home


While you will have obtained a copy


of your client’s records from the facil- ity before filing suit, you should again formally request them through written discovery after suit is filed. While this may seem redundant, it is important to compare the records received through discovery to those provided pre-suit. Are any documents missing? Are any new documents included? Are there changes


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or alterations to any documents? You may also inspect the original record and compare it to what had been previously provided. Any alterations or changes to the records may help you prove motive to dissemble, increasing jury appeal and settlement value. The facility records should be in-


spected closely to learn about other providers who may have treated the plaintiff. Many nursing home residents are transferred from acute care facilities, and the nursing home chart will usually contain a transfer summary from that facility. If your case involves a failure to treat or medicate, the transfer summary could be helpful, in that it may set forth certain treatments and/or medications to be provided to the resident. It will also provide historical information about the resident that may not be included in the nursing home records. In most cases, you will want to obtain the resident’s records from prior health care provid- ers to assess causation and damages. These prior providers could be helpful as fact witnesses and, perhaps, as expert witnesses. It is a good idea to identify the most pertinent providers and meet with them before defense counsel does. Although HIPAA prevents that from occurring without a court order, such an order may be entered and you want to make sure that you have spoken with the provider first. The records should also be closely


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34 Trial Reporter


examined to identify nurses or other nursing home staff who may be impor- tant witnesses in the case. It is common for caregivers such as nursing assistants or LPNs to have short stays at nursing homes and move to other jobs or other cities. The nurses may be provided by a local agency, or be “travelers” who take


(Continued on page 36) Summer 2007


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