Depositions


Identifying and Defending the Plaintiff and Family Members at Deposition


As with any deposition in which you are defending


your client or your client’s family members, most if not all of your work should occur long before the defense lawyer begins questioning your clients. Tis is the opportunity for your clients to impress upon counsel for the nursing home that your client was wronged and should be fairly and justly compensated. On the flip side, this is a chance for counsel for the nursing facility to question the motivations behind the lawsuit and to get a glimpse at family dynamics. Te use of an elderly older witness5


in long term care


litigation is somewhat rare. Typically, the plaintiff is either deceased or incapacitated to the extent that his or her use as a witness would be ineffective. However, there are times in which an elderly older witness will play a key role in the litigation. Generally, such witnesses will either be the widower or widow, family member or, on a rare occasion, a witness or co-resident. Assuming that your older witness – be it victim, family


member or fact witness -- has sufficient mental capacity to testify and recollect events, it would be prudent to videotape the deposition. In this way, the fact finder later will be able to assess credibility and ability to remember. If the victim, a videotaped deposition will permit the fact finder to later assess visually injuries that have occurred such as a fracture from a fall or the discomfort of a bedsore. If the victim no longer is a resident at the nursing facility,


issues that you may need to confront include common visual and hearing problems that may affect a competent older client’s ability to serve as an effective witness, and office accessibility issues. It is important to learn whether the older witness is taking medications that may affect his or her ability to testify, consider demonstrative evidence, or view documents. If a deposition is to occur outside of the nursing facility at for example a law office, it is helpful to create a witness care package complete with maps and other logistical information. Include a form printed in large type face that identifies and provides directions as well as the date and time the witness needs to be there. For the older witness, consider doing a “dress rehearsal” of questions and answers. Tis way, you will be able to assess whether your witness can see and hear adequately by showing your witness documents to determine whether they can see any potential exhibits comfortably.


Te spouse of an injured or deceased resident is the most


commonly encountered older witness. It is helpful to use an older witness to provide unique evidence from the perspective


of another long term care resident or spouse. Te witness 5 Te term older witness is meant to describe an individual who has been limited either physically or mentally by problems or health concerns typically associated with advancing age.Nursing Home Litigaton: Pretrial Practice and Trials, Second Edition, Edited by Ruben Krisztal, p. 41 et seq., Lawyers & Judges Publishing Company, Inc.


Trial Reporter / Winter 2011 47


may also be able to provide testimony regarding general conditions or problems at the facility. It is imperative to identify and interview all family members who were the most involved in the care of the victim. Tese individuals are crucial in refuting evidence contained in the chart such as turning and repositioning issues, nutrition and verify what if any fall precautions were taken at a facility. Family members generally possess a wealth of knowledge regarding the resident. Much can be learned from family members regarding a resident’s preferences, medical history and personality traits. Any family member that is deposed should be prepared


to answer questions regarding visitation patterns, a resident’s preferences, medical decisions and participation in the resident’s care. Tese areas will be explored between a family member and the resident in an effort to expose any family member who had little or no involvement with the resident and his or her care, but is nonetheless pursuing a monetary claim.


Deposing Facility Witnesses Te nursing home administrator and director of nursing


are deposed in almost every nursing home case while other witnesses, like the medical director or attending physician may be deposed depending on the facts of the case.


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