Discovery in Nursing Home Cases (Continued from page 37)
responsibility of the Maryland Depart- ment of Health and Mental Hygiene. All nursing homes are surveyed at least once every 15 months and when com- plaints are received. Any health or safety violations found at a nursing home are contained on a deficiency list.4
The list
will also provide a history of problems and the facility’s efforts to correct them. These deficiency lists are available to the public. Nursing homes are required to post them. They may be found at some county libraries. Another way to obtain them is to contact the Office of Health Care Quality, Spring Grove Hospital Center, Bland Bryant Building, 55 Wade Avenue, Catonsville, Maryland 21228.5 However they are obtained, you should review them as they may provide infor- mation about your nursing home and relevant to your case.
Depositions There are a multitude of potential
witnesses to depose in a nursing home case. Whether it is economical to depose everyone is a decision that is specific to each case. Below are suggestions for individuals to depose. A corporate designee deposition may be helpful for several reasons. If there is any question as to the corporate structure of the nursing home, a corporate designee should be deposed. This individual may be asked to address questions regarding the staffing at the time of the incident, the names and/or addresses of certain individuals, etc. A corporate designee may also be helpful for issues such as problems with surveys and deficien- cies and what, if anything was done to address them. When requesting a corporate designee deposition, make sure that whoever is produced is capable of responding to the issues that are set
4 5
See, “Nursing Homes: What You Need to Know,” published by the Maryland At- torney General’s Office at Chapter 4. Id.
40
forth in the deposition notice. Under the Maryland Rules, more than one person may be produced as a corporate designee to answer the specific questions. You want to avoid tipping your hand while questioning a witness who does not have the knowledge needed to answer the question. Go over the deposition notice with the witness at the beginning of the deposition and ask whether they have the ability to address the subject matters that are listed. Insist that the defendant produce knowledgeable witnesses or file a Motion to Compel. Depending on the nature of the case,
it may be appropriate to note the deposi- tion of the administrator. It is possible that the administrator may be the person who is produced for a corporate desig- nee deposition. Assuming that nursing care is an issue
in the case, you should strongly con- sider deposing the Director of Nursing (DON). Occasionally, these individuals do not have the same degree of loyalty to the facility as others in management. They may be aware of problems in the facility or with specific caregivers and are the most likely witnesses to disclose these issues. As noted above, it will be important to locate the individual who was serving as the DON at the time that the care was rendered. You may also want to consider deposing any directors who followed the one who was on duty when the incident occurred as to any discus- sions that transpired about the care at issue. If your case includes a nutrition is-
sue, the dietician could be an important witness. Nutrition is a recurring issue in nursing home cases because of its importance to the well-being of resi- dents. Older residents, especially those with Alzheimer’s disease or dementia, are frequently malnourished. Dieti- cians will consult on these patients and prepare either a menu or a minimum calorie intake for them. If there is a discrepancy between what was recom- mended, what was ordered, and what was administered, the dietician may be your most important witness. Nutrition is also important in pressure ulcer cases
Trial Reporter
as inadequate protein intake may lead to skin breakdown. The depositions of the attending
physician and the key members of the nursing staff may make or break a case. Often there are circumstances when a physician will claim that they should have been notified of a change in the resident’s condition by the nurses and was not. Conversely, the nursing staff may claim that they tried to contact the physician about a problem with the resident and the physician did not respond. Conflicts like these invariably assist plaintiffs. Do your best to create these disagreements. To do so, you need to be knowledgeable about the records and set up the witness so that they are in a position to lay the blame at the feet of the other.
Conclusion
As the population ages, the number of nursing home residents will increase. This will likely increase the amount of litigation of nursing home cases. To successfully investigate and prosecute a nursing home case, it is imperative to understand the nomenclature and to know what to request and obtain during discovery. By gathering the important documents and deposing the proper individuals, you will develop a strong foundation to hopefully lead to satisfy- ing resolution of the case. n
About the Author
Jonathan E. Goldberg is an associate with Jeffrey S. Goldstein, P.A. Prior to joining his present firm, Mr. Goldberg spent almost 14 years defending medical negligence and nursing home negligence cases. He is a member of the MTLA Nursing Home Section and is a co-chair of the ABA’s Health Law Litigation Committee’s Medical Malpractice sub- committee. He may be reached at (410) 884-6890 or
jon.goldberg@jsglaw.com.
Summer 2007
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