Nursing Home Litigation and Admissibility of Evidence ...media.straffordpub.com/products/nursing-home... · 7/20/2017 · BREACH – Did the nursing home breach that duty? CAUSATION

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Presenting a live 90-minute webinar with interactive Q&A

Nursing Home Litigation and Admissibility

of Evidence: Proving or Challenging

Authentication, Relevance and Hearsay

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, JULY 20, 2017

Mark A. Cox, Founder, Mark A. Cox, Edmond, Okla.

Ahsan A. Jafry, Esq., Burns White, Cherry Hill, N.J.

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Nursing Home Litigation and Admissibility of Evidence

Mark A. Cox

Law Office of Mark A. Cox, PLLC

15401 N. May Ave. Suite 400

Edmond, OK 73012

405.285.544

[email protected]

www.MarkCoxLaw.com

mailto:[email protected]

http://www.markcoxlaw.com/

Types of critical evidence in nursing home injury cases

Former Employee Testimony

• I think one of the most important types of evidence in a nursing home

case comes from former employee testimony. I’ve developed a systematic

way to discover and secure former nursing home employee testimony

which is the subject of another seminar. However, as far as getting such

testimony admitted at trial, it comes down the relevance. There are

different arguments used to admit nursing home employee testimony

based on their case-specific knowledge base. If the nursing home

employee took care of the resident at issue, then there is a strong

probability such will be admissible at trial. It would be very hard for the

nursing home to argue otherwise.

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Former Employee Testimony

• It’s a little more difficult if the former nursing home employee did not

take care of the resident at issue. However, as long as the former

employee worked at the nursing home during the resident’s admission,

and was in a position to observe the type of care given at the facility, then

such testimony will likely be admitted at trial over any relevancy

argument by the defense.

• Former nursing home employees that worked at the facility close in time,

either before or after your resident’s admission still may be able to testify

about the conditions they witnessed and were actively involved in at the

nursing home. It’s a little tougher argument but it is certainly possible.

7


Nurse Expert’s Opinions as to Standard of Care Related to

Federal and State Regulations

• Your nurse in his or her deposition should be able to explain why such

regulations are part of the standard of care for nursing homes. You can use

such that deposition testimony to fight off any motion in limine or partial

summary judgment motion on this issue. Assuming you win these motions, be

sure and educate the judge, again, shortly before trial using a trial brief.

• If you are unable to convince the judge that the federal and state regulations

should be considered as subjects of negligence per se instructions, then at the

very least, you should be able to get such regulations admitted at trial as

evidence of negligence.

8


Nurse Expert’s Opinions as to Standard of Care Related to

Federal and State Regulations

• Because federal and state nursing home regulations are relatively plaintiff

friendly, plaintiff’s attorneys should work very diligently in order to get such

regulatory evidence admitted at trial as the standard of care for nursing homes

as well as the subjects of negligence per se instructions. The first step in

getting such regulations admitted begins with depositions of nursing home

personnel.

• Routinely, staff and supervisory LPNs and RNs will admit during their

depositions that regulations, both federal and state are part of the standard of

care for nursing homes. Once they’ve admitted that, you should not have a

difficult time getting such evidence to the jury. If, however, nursing home

employees have been woodshedded properly by defense counsel, they may not

admit as much. At that point, you must rely on your expert nurse.

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Owners’ Culpability

• In order to reach as many couple defendants as possible, I routinely sue all

owners of the operating entity no matter what percentage of ownership

they hold. These individual owners desperately try to get dismissed from

the lawsuit claiming that only the operating entity that holds the license

and possibly the management company for the nursing home should be

defendants. They argue such individual owners are simply shareholders in

a corporation and therefore protected by corporate law. However, if the

owners participate, in any meaningful way in the operation of the nursing

home, then the court will usually allow me to pursue them in the lawsuit.

If, however, an individual owner has never stepped foot in the nursing

home and has never participated meaningfully in the operation of the

nursing home, then the defense has a good argument that they should be

dismissed from the lawsuit.

10


Key Exhibits

• Below is a list of exhibits that I typically use as part of my preliminary and

final exhibit lists in nursing home cases. The list encompasses the types of

evidence, critical to support your claims against the nursing home and its

operators/owners. The list will naturally be longer depending on the

specific defendants I’m suing.

• You should be able to lay the proper foundation for authenticating most of

the nursing home documents listed below by taking a corporate

deposition. Whoever the nursing home produces should be able to

properly identify and verify the accuracy of such exhibits. It is up to you

to develop the necessary evidence to convince the court that such

evidence is relevant and therefore admissible.

• You should also have your nurse expert testify in his/her deposition about

all of the below evidence you want admitted at trial. If the expert

identifies such evidence as the kind experts in his/her field rely on and in

fact relied on to form his/her opinions, you should have no problem

getting such evidence admitted at trial.

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Key Exhibits • Advertising

• Anatomical charts, graphs, drawings and demonstrative aids

• Business/Admin. file of Resident

• Census records

• Charts of relevant times and events

• Complaints

• Consultant Reports

• Daily Time Sheets

• Defendants’ Corporate Financial Information

• Deficiency Reports

• Government investigations of Defendant Nursing Home

• Documents, records and things concerning Defendant Nursing Home employees including criminal investigation records and personnel material

• Employment records of personnel at Defendant Nursing Home

• Floor Plan

• In-Service documents

• Medical bills-Relevant

• Medical/Nursing Home records- Relevant

• Nurse Aide licensure information

• Nurse Licensure information

• Oklahoma DHS/DOH material concerning any nursing home owned, operated or administered by any of the owners of Defendant Nursing Home

• Policies and procedures

• Records concerning other nursing homes owned by Defendants

• Staffing Documents

• Training/performance records

• Owner information

• Financial documents of the nursing home and its owners/operators

• Medicare Cost Reports

• Medicaid/Oklahoma Healthcare Authority Cost Reports

• DHS investigations/inspections

• Okla. DOH investigations/surveys/inspections

• Death Certificate

• Personnel files

• Administrative File

• Brochure

• Website

• Direct Care Hours Sheets

• Employee Manual

• Grievance Log

• Handwritten schedules

• Incident Log

• Incident reports

• Medical Director contract

• Monthly Staffing hours

• Quality of Care documents

• Timecard alternative report

• Regulatory investigation documents of Defendants’ employees

• Electronic communications

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Nursing Home Litigation and

Admissibility of Evidence

PART 1 - RELEVANCE


PART 1 – RELEVANCE

Ahsan A. Jafry, Esq

Burns White LLC

[email protected]



PART 1 - RELEVANCE

F.R.E. 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or

less probable than it would be without the

evidence; and

(b) the fact is of consequence in determining

the action.

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PART 1 – RELEVANCE

What is “of consequence” in a Nursing Home Malpractice case

DUTY – the nursing home has a duty to provide the medical care that meets the standard of care

BREACH – Did the nursing home breach that duty?

CAUSATION – Did this breach cause the Plaintiff’s damages? (was the damage caused by underlying medical issues)

DAMAGES – What damages were caused by the breach of duty (i.e. pain and suffering, wrongful death, punitive damages)

15



PART 1 - RELEVANCE

F.R.E. 403. Excluding Relevant Evidence for

Prejudice, Confusion, Waste of Time, or

Other Reasons

The court may exclude relevant evidence if its

probative value is substantially outweighed by a

danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly

presenting cumulative evidence.

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PART 1 - RELEVANCE

ADMISSIBILITY AT TRIAL DIFFERENT THAN THE STANDARD FOR SCOPE OF DISCOVERY

Fed. R. Civ. P. 26(b)(1): Parties may obtain discovery regarding any

non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable

Most states apply the “reasonably calculated to lead to admissible evidence”

This standard much lower than admissibility at trial

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PART 1 - RELEVANCE

OWNERS AS DEFENDANTS Owners of a nursing home typically have never met the

resident and do not provide any hands on care Very difficult to argue that they have any relevant facts

for a nursing home malpractice claim

Typically, owners are dismissed from the case before trial

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PART 1 - RELEVANCE

NURSING HOME FINANCIAL DATA

Budgets

Medicare and Medicaid Cost Reports

Case Mix Index (CMI) – Medicare Reimbursement rate

This evidence is not relevant to Duty, Breach or Causation, or Damages and will get excluded at trial

Relevance as to punitive damages????

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PART 1 - RELEVANCE

FEDERAL AND STATE REGULATIONS

May be relevant to assist in defining the standard of

care

An expert witness is not permitted to explain the law, this is the function of the judge. Ptaszynski v. Atlantic Health Systems, 111 A.3d 111 (N.J.Super. App. Div. 2015)

Likely to get excluded from trial under F.R.E 403

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PART 2 – HABIT v. CHARACTER



Ahsan A. Jafry, Esq

Burns White LLC

[email protected]




F.R.E. 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

This is a regular response to a repeated specific situation

The doing of the habitual acts may become semi-automatic

Example 1: habit of going down a particular stairway two stairs at a time

Example 2: giving the hand-signal for a left turn

22




F.R.E. 404. Character Evidence; Crimes or Other Acts

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

23




TYPES OF HABIT EVIDENCE IN NURSING HOME LITIGATION

Turning and Repositioning

• Always an issue in Pressure Ulcer cases • Not typically documented • Done every two hours • Done during rounds • The positioning is checked by nursing staff

Toileting • Usually an issue in fall cases • Not typically documented • Performed before and after meals, during CNA rounds,

before putting a resident to bed

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TESTIMONY OF FORMER EMPLOYEES Is the testimony of Habit/Routine Practice or

Character/Prior Bad Acts? Testimony that the Nursing Home is a horrible place is

inadmissible character evidence General testimony that the Nursing Home has provided

negligent care to other residents is inadmissible character evidence

Testimony that the nursing home has a habit and

routine practice of a specific act on a specific occasion may be admissible (probative value must exceed prejudice)

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STATE SURVEY RESULTS State Survey process involves an Annual State Survey

and Complaint surveys Citations are issued violations of Federal Regulations Citations in State Surveys are generally inadmissible

prior bad acts and inadmissible character evidence State Survey results showing a habit and routine

practice might be admissible (probative value must exceed prejudice)

When the Plaintiff is the subject of a State Survey, the

results will likely be admissible as something relied upon by experts

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Admissibility of Evidence PART 2 – HABIT v. CHARACTER

PERSONNEL FILES OF EMPLOYEES

Disciplinary records of employees are generally considered inadmissible evidence of prior bad acts

Factual data pertaining to the discipline of a particular incident at issue in a case will likely be admissible

The conclusions in the disciplinary documents of a particular incident at issue in a case will likely inadmissible as subsequent remedial measure

The results of disciplinary decisions of a particular incident at issue in a case may be inadmissible as prejudicial as it would not have probative value

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Admissibility of Evidence PART 2 – HABIT v. CHARACTER

INCIDENT REPORTS

Incident Reports of other incidents are generally considered inadmissible evidence of prior bad acts

The factual data in an incident report is typically admissible

The conclusions in Incident reports are likely

inadmissible as subsequent remedial measure but this information is typically in an updated care plan

QUALITY CONTROL DATA

Nursing Homes are required to keep quality control data (i.e. number of falls, facility acquired pressure ulcers). This data is generally considered inadmissible evidence of prior bad acts

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PART 3 – HEARSAY


PART 3 – HEARSAY

Ahsan A. Jafry, Esq

Burns White LLC

[email protected]



PART 3 – HEARSAY

HEARSAY

Out of court statement or document that is

offered for the truth of the matter asserted

Most of the evidence in a Nursing Home

Malpractice case is derived from Hearsay

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PART 3 – HEARSAY

HEARSAY EXCEPTIONS

Records of a Regularly Conducted Activity

(Business records exception)

Statement made for Medical Diagnosis or

Treatment

Then-existing mental, emotional or physical

condition

Public records

Admission of a party opponent

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PART 3 – HEARSAY

HEARSAY WITHIN HEARSAY

This is when a hearsay statement is made within

another hearsay statement (or document) Each level of hearsay has to be evaluated The statements are admitted if each level of

hearsay conforms with an exception to the hearsay rule

Known as the “food chain” or “telephone rule”

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PART 3 – HEARSAY

HEARSAY ANALYSIS #1

This is deposition testimony of a conversation between a

daughter and a nurse at a hospital

Very common in a Nursing Home Malpractice case for family

members to claim that another medical provider commented

about the nursing home’s actions

The issue here is whether the resident was “lying flat” during a

tube feed.

Clearly inadmissible hearsay

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Admissibility of Evidence PART 3 – HEARSAY

HEARSAY ANALYSIS #2

This is a situation involving Hearsay within Hearsay

First level of hearsay is from an unidentified CNA – may qualify as

admission of a party opponent

Second level of hearsay from another unidentified individual

Lack of personal knowledge and inability to identify the witnesses

makes this inadmissible

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Admissibility of Evidence PART 3 – HEARSAY

HEARSAY ANALYSIS #3

This is another Hearsay Within Hearsay situation

The first level is met because of the business records exception

The second level “had been like this since 5am” and “had to go now”

could be met as an admission of a party opponent

Because of the prejudicial nature it was excluded and the ambulance

personnel had to testify live at trial

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PART 3 – HEARSAY

HEARSAY ANALYSIS #4

This is another Hearsay Within Hearsay situation

The first level is met because of the business records exception And

public records exception

The second level statement from the CNA “it was an oversight” could

be met as an admission of a party opponent

Depends on identifying the CNA and probative v. prejudicial nature

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PART 3 – HEARSAY

OTHER COMMON HEARSAY ISSUES WITH MEDICAL RECORDS

Competency of the declarant making statements for purposes of diagnosis (i.e. may be a patient with dementia)

Complex medical opinions contained within medical records are not admissible (Nowacki v. Community Health Systems, 141 N.J. 95, 660 A.2D 1193 (1995)

Experts will be able to talk about the contents of the medical records as materials relied upon in the field of nursing home medicine

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