We have uploaded a great Order compelling the production of an incident report.  The defense attempted to claim that the incident report was work-product.  The Court rightly disagreed.  All nursing homes are required by state and federal regulations to investigate and prepare incident reports when an incident causing injury to a resident ha occurred.  This is done in the ordinary course of business and not as result of anticipation of litigation.  These incident report should be produced but defense attempts to hide these incident reports from the families of residents.

We have uploaded a great Motion for Sanctions for deposition misconduct such as coaching witnesses and obstructive objections.  The motion was done by the well respected Minnesota nursing home lawyer Mark Kosieradzki.  Defense counsel in numerous cases interfere and obstruct the taking of depositions.  This is in violation of the Rules of civil Procedure and the oath of professionalism that lawyers must abide by in South Carolina.

I read an interesting article about getting medical records earlier this week.  The article raised several important points:  1) Its hard to get your own records, but its much harder to get someone else’s; 2) Its hard to get ALL records; 3) Its hard to be sure that the records are accurate.

USA Today specifically points out that its harder to obtain medical records from treating facilities after something has gone wrong.  In fact, the article suggests that one way to avoid just this sort of problem is to routinely request copies of medical records.  This advice, which I think is very good advice, led me to wonder, well, just how often do you request records?  I mean, consider you’re in the hospital having a baby.  Do you request the records on day 2?  Do you request the records upon discharge?  Do you request the records on day 2 and upon discharge? 

The article also points out that under federa law, every patient or designated representative has the right to see and copy the patient’s medical records.  This is aparently not the case in nursing homes.  Nursing homes in this area routinely say that once a patient is discharged, they are no longer a patient, and therefore have no right of access to their records, at least not until those records have been thoroughly reviewed by their corporate attorneys.  Clever, don’t you think? 

Worse than that, try arguing with in-house counsel about whether or not your deceased client’s daughter (who was the Responsible Party for purposes of admission, who likely signed an arbitration clause that the nursing home will try to enforce against her) is a "designated representative" for purposes of reviewing and/or receiving medical records.

The article is worth the read.  And I don’t think its exaggerated.  And its certainly something to think about. 

The indictment alleges that the men ran about 70 nursing homes in Texas and other states and were responsible for a $200 million operation but hid their control of the facilities. Payroll companies: More than 150 sham payroll companies were created to avoid paying taxes, according to the indictment.

A former Hurst nursing home executive who crisscrossed the Atlantic as part of a tax-evasion scheme pleaded guilty Wednesday to conspiring to cheat the IRS out of $34 million.

As part of a plea agreement, Larry G. May will cooperate with the prosecution of two of his former North Texas business associates, who the government said helped control the nursing homes involved.  May, Stephen Michael Ewing of Bedford and Gary R. Trebert of Frisco were indicted in March on 29 federal counts including mail fraud, making false statements to a government agency, and defrauding the IRS and the U.S. Health and Human Services Department.

May also pleaded guilty Wednesday to perjuring himself by signing false tax returns for 63 nursing homes with payroll taxes totaling $4.45 million.  

In many of our depostions, defense counsel asks questions that border on the ridiculous and sometimes cross the line to inappropriate or harassing questions. I ran across this artice that talks about a Plaintiff’s attorney who did something about it.

A plaintiffs attorney sued his adversary for asking "inhumane" questions during a deposition that allegedly inflict "grievous emotional distress."   Bruce Nagel claims Judith Wahrenberger, his adversary in a medical malpractice case, acted tortiously by asking a husband whether he felt his wife had played a role in the death of their infant daughter by handling the child roughly.

"Wahrenberger’s unsupported and intentional attack upon the parents was beyond any acceptable behavior of a civilized human being," alleges Nagel, of Nagel Rice in Roseland, N.J.

"I would not be doing my job if I didn’t explore these areas," says Wahrenberger, of Springfield, N.J.’s Wahrenberger, Pietro & Sherman.

 

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The NY Times has an interesting article about how health care providers misuse HIPAA to conceal medical mistakes or neglect from family members.

An emergency room nurse told Gerard Nussbaum he could not stay with his father-in-law while the elderly man was being treated after a stroke. Another nurse threatened Mr. Nussbaum with arrest for scanning his relative’s medical chart to prove to her that she was about to administer a dangerous second round of sedatives.

The nurses who threatened him with eviction and arrest both made the same claim, that access to his father-in-law and his medical information were prohibited under the Health Insurance Portability and Accountability Act, or Hipaa, as the federal law is known.

Mr. Nussbaum, a health care and Hipaa consultant, knew better and stood his ground. Nothing in the law prevented his involvement. But the confrontation drove home the way Hipaa is misunderstood by medical professionals, as well as the frustration — and even peril — that comes in its wake.

Government studies released in the last few months show the frustration is widespread, an unintended consequence of the 1996 law.

Hipaa was designed to allow Americans to take their health insurance coverage with them when they changed jobs, with provisions to keep medical information confidential. But new studies have found that some health care providers apply Hipaa regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms — although no penalty has been levied in four years.

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David McGuffey is a great nursing home and elder law attorney from Tn.  He is kind enough to share with other nursing home attorney his summary of important cases and legal theories.  Recently he wrote an article about direct liability of parent corporations in the nursing home industry.  Below are excerpts:

In Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (Ill. Sup Ct. February 16, 2007), the Illinois Supreme Court affirmed the court of appeals, finding that a parent corporation may be directly liable where it exerts budgetary control over its subsidiary. In Forsythe, the court said the parent “can be held liable if, for its own benefit, it directs or authorizes the manner in which its subsidiary’s budget is implemented, disregarding the discretion and interests of the subsidiary, and thereby creating dangerous conditions.”  Mere ownership alone by a parent corporation is insufficient, as is having individuals serving on boards of both the parent and the subsidiary. Setting budgetary goals is likely insufficient. However, where a parent corporation specifically disrespects the actions of its subsidiary, using its ownership interest to command, then direct liability may be imposed over a specific controlled transaction. Under this theory, a parent is held liable for its own actions against a third party through “the agency of subsidiaries.”

So how is Forsythe applied to nursing home cases? In Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560 (1st Dist. Tex. App. August 3, 2006), the court held that the evidence was legally insufficient to support a verdict against the nursing home’s parent corporation and reversed a $2.2 million verdict. In support of the verdict, Plaintiff argued that the employment paperwork the nursing home staff completed that had the parent corporation’s name (HHD) on it, or refers to HHD as the employer, demonstrates HHD’s employment of the nursing home staff and establishes HHD’s vicarious liability. Plaintiff pointed to employment-at-will statements, job description acceptance forms, substance abuse policy notices, Equal Opportunity Employment statements, acknowledgment of time clock procedures, no solicitation policy notices, ethics and conduct policies, disciplinary and termination forms, and receipt of employee handbook acknowledgments as evidence supporting a finding that HHD employed the nursing home staff. Plaintiff also observed that the nursing home used administrative manuals containing HHD’s policies and procedures, thus further indicating that HHD controlled the details of the work performed.” This, however, was insufficient because there was no evidence that HHD controlled “the details of the care.” The transaction specific inquiry found some elements of control (the first element), but none that related to the negligent care itself (the second element).

Where an injury results from insufficient staffing, if the parent assumes budgetary control which limits staffing, then the parent is controlling the details of care. There are now ample studies linking quality of care to appropriate staffing making dangers imposed by short staffing foreseeable. See, e.g., AHRQ, Nurse Staffing and Quality of Patient Care (March 2007) (See also Press Release describing study on how chain planning practices can hurt patient care). In light of a subsidiary’s contractual quality of care obligation to the Medicare and Medicaid programs, control that prevents the subsidiary from providing quality care under its provider agreements is likely eccentric.

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It should be noted that there are certain violations discovered during the survey process that will have an affect on the well-being of a resident. For instance, not having sufficient staff to meet the residents needs, failure to notify the physician of a change of the resident’s condition, dehydration, malnutrition.

Moreover, prior conduct in general is admissible under the law under certain circumstances. Evidence of prior similar accidents is admissible to prove defect, foreseeability, notice appreciation of the danger and to show defendants’ disposition, intention, or motive in the particular acts for which damages are claimed. In the final analysis, the question of admissibility of similar accident is left to the sound discretion of the trial court. Regarding the particular issue for instance, the court has stated:

In determining whether accident are ‘substantially similar,’ the factors to be considered are those that relate to the particular theory underlying the case. Differences in the nature of the defect alleged may affect a determination as to whether the accident are substantially similar. See, e.g. Jackson, 788 F.2d at 1083. (“the ‘substantially similar’ predicate for the proof of similar accident is defined . . . by the defects . . . at issue.”) Moreover, ‘how substantial the similarity must be is in part a function of the proponents theory of proof.’ Exum 819 F.2d at 1162. (‘If dangerousness is the issue, a high degree of similarity will be essential . . . if the accident is offered to provide notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of the kind which should have served to warn the defendant.’ Id. at 1162-63, quoting 1 J. Weinstein and M. Berger, Weinstein’s Evidence, Section 41 (10), at 41-66-67 (1987).

Moreover, a prior report may be offered to prove defect and notice, and received into evidence solely on the issue of notice.