Depositions
Effective Nursing Home Litigation Deposition Strategies
Gregory L. Lockwood F
ormulating an effective deposition strategy in a nursing home case takes time and planning. Many of the factors driving decisions as to whom to depose
and when to depose them center on the nature of injuries involved, whether the victim is alive or represented by a personal representative, and survived by a spouse and/or adult children, and the facility involved in the care in question. Unlike many traditional tort and medical malpractice cases, the victim often times is deceased by the time you are engaged to investigate the matter. When the client is alive and/or still a resident at the nursing facility, the client may be suffering from dementia or other conditions that make full participation in the case problematic. Additionally, many non-facility witnesses to an injury too may suffer from infirmities that would prevent them from providing a complete account of what they witnessed. HIPAA privacy concerns limit your ability to identify these witnesses after the fact, and fear of reprisal (unfounded or not) dampen their willingness to assist. Despite these obstacles, family members, current and former facility employees, and expert witnesses, combined with strategic use of federal and state regulations can assist you in meeting your burden of proof and delivering a measure of justice for your clients.
Do I Have The Right Defendants? Often, it is difficult to determine whether all necessary
parties have been sued and served at the outset of a case. Ensuring that all proper entities are parties to the case becomes critically important due to statute of limitations concerns.
Additionally, many nursing homes employ independent contractors to provide a wide array of services that may be implicated in a lawsuit such as radiology, occupational therapy, physical therapy, and nursing. Moreover, most medical doctors who attend to patients in a facility are not employed by the nursing home. As an alternative or in addition to written discovery, it
can be helpful to serve a corporate designee deposition notice along with the complaint. Maryland Rule 2-412(c) and (d) requires nursing homes to produce documents, including medical records, policies and procedures and to designate individuals to testify as to matters set forth in the deposition notice. A corporate designee deposition can be targeted to obtain these records and information concerning important threshold issues such as ensuring that the proper corporate entities have been named, ensuring that the health care providers at issue are employees or agents of the nursing facility or are independent contractors, the corporate structure of the facility including any parent corporations and subsidiaries, and whether there is applicable insurance.
Arbitration Agreements Once you have filed your nursing home complaint, often
an arbitration agreement appears for the first time attached to a Motion to Compel Arbitration or a Petition to Arbitrate. Te appearance of an arbitration agreement early in the case provides the attorney with an opportunity to conduct depositions on the circumstances surrounding the execution of the agreement sought to be enforced. For example, if the victim signed the agreement, the agreement may be challenged on “grounds that exist at law or in equity for the revocation of a contract,” grounds such as incapacity.1 1 Md .Cts. & Jud. Proc. Code Ann. Section 3-206(a)
Targeted depositions Trial Reporter / Winter 2011 45
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68