Nursing Home Litigation From The
Defense Perspective by R. Scott Krause and Tom Althauser1
Investigation and Evaluation of Claims
In many respects, nursing home cases
are quite similar to any other form of civil litigation. As we all have experi- enced, some claims may be investigated, evaluated and settled promptly. Others seem to go on interminably. Sometimes the reason for the difference is the particular styles of counsel (plaintiff or defense), the client or the insurer. In those cases in which one side will evaluate and consider settlement only after depositions are taken of all material witnesses, there is often nothing that can be done other than to continue efforts to move the case forward. Sometimes the reason for the differ-
ence in how quickly a nursing home case is investigated and evaluated is the availability of records and documents. In many cases, a thorough case evaluation cannot be performed until all records are obtained and reviewed. From the defense perspective, plaintiff requires the same information to properly evaluate a case. Thus, when plaintiff ’s counsel is obstreperous, such conduct often suggests that there is something that he or she wishes to hide and it frequently makes defense counsel more skeptical of the claim. As a result, those lawyers who cooperate to obtain and share all relevant medical records are often, but certainly not always, able to resolve cases more quickly. With less frequency, there is a signifi-
cant difference in the way a particular nursing home claim is viewed by oppos- ing counsel. Sometimes those differences seem to be more valid than in some instances. Plaintiff ’s counsel’s particular
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With significant assistance from third-year law student Russell Berger.
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experiences may create a different prism through which a case is viewed. For example, counsel may have diverging opinions on the preferability of a chosen venue. Or, plaintiff ’s counsel may believe that punitive damages are recoverable in a case where, at least in defense counsel’s view, there is no probability of any such recovery. Unless your opponent can un- derstand your views, however, resolution will not occur. Thus, in such cases, open and frank discussion with opposing counsel is often helpful. Occasionally, however, the difference
in the parties’ respective settlement postures is based upon a very different perception of the law or the outrageous- ness of an act. Where those views are strongly held, with respect to punitive damages, for example, the respective positions may remain entrenched until that issue is decided. Although it does not always happen,
as a general rule the cases that are in- vestigated and evaluated most quickly are those in which plaintiff ’s counsel has obtained all the medical records and is willing to share them, even with plaintiff ’s counsel’s indexing. Likewise, in cases where plaintiff ’s counsel has re- tained experts who have given opinions, prompt sharing of that information oftentimes allows the issues in the case to be narrowed promptly. Injury claims may also be more dif-
ficult to evaluate and potentially resolve at an early stage where plaintiff ’s counsel focuses on issues beyond the medical care provided in a nursing home setting, and the documentation of that care. With increasing frequency, plaintiffs seem to be propounding discovery that appears to have little or nothing to do with the specific claim. Whether or not relevant to that specific claim, “scat- ter-shot” discovery requests are often
Trial Reporter
propounded. Some plaintiff ’s attorneys fail to bear
in mind that information and docu- ments concerning published nursing home policies and procedures, nursing staffing ratios and related staff time re- cords, nursing home budgeting, census data, State surveys and other incidents that have occurred in the nursing center are not always germane to every claim. From defense counsel’s perspective, much, if not all, of the requested in- formation will not lead to admissible evidence; often resulting in discovery motions. In the event that the court orders the information to be produced, significant time is often required to de- termine the availability of any records from the relevant time period, often several years in the past, to locate such records in the center’s storage facility or archives, and to review the records to determine whether such records are discoverable. Moreover, from the nursing home’s
perspective, requests for certain in- formation in these areas may raise proprietary business concerns. In those instances, many nursing home clients will wish to obtain signed confidential- ity agreements from plaintiff ’s counsel before providing information that it deems to be proprietary information concerning their business practices, particularly with respect to budgeting, staffing and policies and procedures.
What Is the Standard of Care and Was It Breached?
While certainly not exhaustive, nurs-
ing home litigation often falls into one of the following categories: falls; pres- sure sores; death; malnutrition; battery
(Continued on page 32) Summer 2007
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