nursing home litigation and admissibility of evidence...
TRANSCRIPT
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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
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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Types of critical evidence in nursing home injury cases
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.
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Types of critical evidence in nursing home injury cases
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.
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Types of critical evidence in nursing home injury cases
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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Types of critical evidence in nursing home injury cases
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.
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Types of critical evidence in nursing home injury cases
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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Types of critical evidence in nursing home injury cases
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
Nursing Home Litigation and Admissibility of Evidence
PART 1 – RELEVANCE
Ahsan A. Jafry, Esq
Burns White LLC
Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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)
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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
Nursing Home Litigation and Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
Ahsan A. Jafry, Esq
Burns White LLC
Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
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
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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
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
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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
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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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
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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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
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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Nursing Home Litigation and
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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Nursing Home Litigation and
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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Nursing Home Litigation and
Admissibility of Evidence
PART 3 – HEARSAY
Nursing Home Litigation and Admissibility of Evidence
PART 3 – HEARSAY
Ahsan A. Jafry, Esq
Burns White LLC
Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
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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Nursing Home Litigation and
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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Nursing Home Litigation and
Admissibility of Evidence
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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Nursing Home Litigation and
Admissibility of Evidence
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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