How do I blame thee?  Let me count the ways

Trial; May, 2006

Lynn R. Laufenberg’s article discussing the "blame the patient" defense in medical malpractice litigation is divided into three categories, each one relates to a different way the plaintiff can be blamed for the negligent care received. The author describes each one and offers suggestions on how to counter-act this type of affirmative defense through discovery, pretrial motions, and jury instructions.

Laufenberg first discusses contributory negligence and offers the example of a past case in which Susan, a life-long smoker, sought treatment from a new primary care physician for a chronic cough. Chest films reviewed by a radiologist revealed an abnormality in the upper lobe of Susan’s right lung and recommended a comparison with prior films. The comparison was never done and when Susan presented with persistent cough and shortness of breath to another doctor in the same group two years later, a CT scan was ordered. The scan revealed a four-centimeter mass in the upper lobe of the right lung. The malignant mass was too far advanced to be removed and chemotherapy and radiation treatment were unsuccessful. Susan died a year later.

During litigation the defense asserted contributory negligence as an affirmative defense saying that Susan’s doctor had repeatedly explained the risks of smoking, that she caused her cancer by smoking and continuing to smoke after being diagnosed with lung cancer. The plaintiff filed pretrial motions to preclude mention of contributory negligence at trial on the basis that case law "recognizes that the plaintiff seeks compensation only for those injuries that the failure or delay caused. The physician’s duty is to accurately diagnose and properly treat the outpatient’s condition, regardless of the circumstances that produced it." The author continues by saying most courts dictate that a patient’s conduct must be concurrent or contemporaneous with the physician’s negligence to be considered contributory.

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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.

Sometimes Defendants try to file an early motion to dismiss on Plaintiff’s negligence per se cause of action. Here is a recent case that will help you overcome Defendant’s Motion to Dismiss.

"It is obvious that as a resident of the nursing home owned by Mariner, McLain’s father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint, and which we assume to have occurred for purposes of a motion to dismiss, were among those these same statutes and regulations were designed to prevent. Likewise, the complaint’s allegations of violations of the same statutes and regulations would be competent evidence of Mariner’s breach of duty under a traditional negligence action. The trial court therefore erred when it granted Mariner’s motion to dismiss McLain’s negligence per se and negligence causes of action. McClain v. Mariner, 631 S.E.2d 435 (Ga. 2006)

Golden Villa v. Smith, 674 S.W.2d 343 (Tex. App. 1984)
OBRA regulations are admissible since a violation of rules which specify a maximum standard of care can provide a plaintiff with a prima facie case of negligence against a nursing home.

Discoverability of Personnel Files

In D’Angelo v. U.S., a medical malpractice and negligent hiring action against Veterans Administration Hospital, the court allowed the plaintiff to discover specific information contained in three doctors’ personnel files, specifically, "any and all records of patient complaints, disciplinary action, staff review of performance, malpractice actions (actual or threatened), job applications, review of job applications, performance evaluations, or other records showing the suitability or non-suitability of these three doctors." D’Angelo v. U.S., 588 F. Supp. 9, 10 (W.D.N.Y. 1983).

In In re Lavernia Nursing Facility, Inc., the plaintiff’s heir brought suit against a nursing home, alleging that the patient had been sexually assaulted by a sixteen-year-old, unlicensed nurse aid employed by the nursing home. The plaintiff sought the personnel file of the nurse aid. The court of appeals of Texas upheld sanctions against the nursing home for failing to produce the "entire" personnel file. The court also held that "personnel file" means every record kept on the employee in question even though a "file" may not be kept together in the same location. Id.

Similarly, defendant health care organizations have been found to lack standing to assert their employees privacy interests in requested personnel files. When faced with an objection based on the privacy rights of the employee, courts have rejected such objections requiring the production of employment and personnel records. In the seminal case of Alterra Health Care Corp. v. Shelley, the Court held that an assisted living facility lacked standing to deny a discovery request of personnel files by asserting the constitutional right of privacy of employees. Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla. 2002). The court specifically disapproved Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So. 2d 778 (Fla. 5th Dist. Ct. App. 2000), which had held that a private employer had standing to assert the privacy rights of its employees.

In another case, the court held that a hospital did not have standing to assert the privacy rights of its nurses: A mere employee/employer relationship is not the kind of special relationship necessary for third party standing. North Florida Regional Hospital Inc., v. Douglas 454 So. 2d 759 (Fla. 1st Dist. Ct. App. 1984); See also, e.g. Humphreys v. Caldwell, 881 S.W.2d 940 (Tex. App. 1994) (a bad faith and unfair settlement practices case in which the Court affirmed the trial courts ruling that an insurance company’s conclusory allegations that its personnel files were private did not impose any duty on the trial court).

Incident/Accident Reports

Incident reports are generated in the regular course of business of the nursing home any time there is an unusual occurrence related to a resident. These are required to be created both by DHEC and by OBRA, and any incident report should list any and all witnesses to an incident or occurrence, as well as a brief summary of what that witness knows. Additionally, this would provide evidence of notice, foreseeability and awareness of a dangerous condition.

This information has been found to be discoverable in the past. In Peacock v. HCP III Eastman, Inc., 497 S.E.2d 253 (Ga.Ct.App. 1998), the Court allowed the discovery of the nursing homes’ incident reports. The Court explained that these reports were relevant in light of Plaintiff’s claim for punitive damages. The Court also concluded that “the similar acts evidence might be admissible in both the liability and punitive damages phases of the trial and could show the [facility] had notice its employees were not properly supervising residents. . .” Id., citing Apple Investment Properties v. Watts, 469 S.E.2d 256 (1996).

The Court in both Peacock and Watts, supra, rejected the Defendant’s arguments that because the reports contained personal information about the residents they were privileged. The Court concluded that it could protect the residents’ personal information by limiting the use and dissemination of the records. Id. This can be accomplished by redacting the names of the residents.

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Although many courts enforce arbitration clauses in admissions paperwork, some clauses have not been enforced because the person who signed the arbitration agreement did not have legal authority or there was no agreement on who would arbitrate the case.

Denial of Arbitration–South Carolina

Fields v. Magnolia Place, 04-CP-42-555 (Feb. 7, 2005)

The Honorable Judge Roger L. Couch denied Defendant’s Motion to Compel Arbitration because signatory did not have legal authority to bind the resident, and that the arbitration provision was vague, indefinite, and lacking material terms.

 Benton v. Summit Place, Inc., 2004-CP-23-0267 (Nov. 17, 2004)  Here is Judge Hill Order denying Defendants’ Motion to Reconsider.

The Honorable Judge D. Garrison Hill denied Defendant’s Motion to Compel Arbitration because there was no mutual assent to arbitrate existed because the chosen arbitration forum is no longer available.

NBI Seminar

Champion Your Client’s Cause and Win

As an attorney who handles nursing home malpractice claims, you know that such litigation is entirely different from other types of malpractice litigation. You must devote an enormous amount of time, energy and resources just to keep up with a wide range of laws and unique issues. But now there’s a single source you can turn to for the specialized information you need to successfully manage such cases.

This information-packed seminar distills volumes of exhaustive research into useful strategies that will help you prove or disprove that a nursing home has caused injury. Let us walk you through all the steps in a nursing home malpractice claim and show you how to make decisions that support your case – from investigation through litigation and every step in between. Attend and get up-to-date on laws pertinent to nursing homes and how typical cases move through the legal system – knowledge that will prepare you to overcome daunting legal hurdles. Don’t miss this opportunity to focus in-depth on case management techniques that pave the way to a favorable outcome – for every client you represent.

Minimize the impact that the "Wandering Resident" presents.
Make persuasive arguments to establish causation.
Drive your points home clearly in your opening argument.
Understand who your client really is to avoid ethical conundrums.
Evaluate nursing home cases properly.
Identify how an advance directive impacts your case.

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OBRA is the federal regulations that establish the standard of care in nursing home facilities that receive Medicare or Medicaid. In those regulations, the below section clearly establishes that the governing body is ultimately responsible for how the nursing home is operated and managed.

42 CFR 483.75 provides:

(d) Governing body. (1) The facility must have a governing body, or
designated persons functioning as a governing body, that is legally
responsible for establishing and implementing policies regarding the
management and operation of the facility; and
(2) The governing body appoints the administrator who is–
(i) Licensed by the State where licensing is required; and
(ii) Responsible for management of the facility.

Canavan v. Nat’l Healthcare, 889 So.2d 825, 2004 Fla. App. holds that the governing body may be liable under this regulation.

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Boone Retirement Center, Inc. v. Hamilton, 946 SW 2d. 740( MO. 1997) as standing for the proposition that quality assurance records are not discoverable in a civil case such as the case at bar. The Defendant’s interpretation of Boone is incorrect.

 In Boone, the State of Missouri Division on Aging conducted inspections of Boone Retirement Center and found many critical areas where the facility was deficient. The State’s Attorney General initiated a criminal investigation, including the issuance of a criminal subpoena seeking records of the facility’s quality assurance committee. The facility refused citing the above statute. It later filed a writ of prohibition after the Judge issued an order for production.

 The Missouri Supreme Court carefully reviewed the statute, paying particular attention to the definition of “State” in the context of the case. In essence, the Court interpreted the federal statutory definition of “State” and determined that a grand jury, a creature of the State, is within the definition of State since it was the State prosecuting the Defendant. Boone is easily distinguishable from the case at bar.

 Quite simply, this Plaintiff is not the “State”. If Congress had intended that persons other than the State be prohibited from discovering quality assurance information, it would have so stated. The prohibition of production does not, therefore, apply in this case. And this makes sense. The obvious purpose of limiting the State from access to these records is to ensure the effectiveness of the process. Since the State regulates and inspects the facility, the facility would hesitate to accumulate information and prepare accurate reports that could ultimately be incriminating if the State has access to the information.

However, in the case at bar, civil litigation is not a common occurrence (such as annual State inspections) that would cause the facility to be less than accurate when conducting quality assurance. As such, the purposes behind prohibition of discovery are not thwarted. Even if this court wished to extend the definition of State to this case, none of the documents relied upon by the quality assurance committee would be included. The Boone court was very clear on this issue. The statute limits the scope of non-production to “records of such committee” and does not extend to records and materials generated or created outside the committee and submitted to the committee for its review. See Boone @ 743. If this Court prohibits production of the Defendants records generated by the quality assurance committee, it should not limit production of materials and information relied upon by the committee.

DETRA L. BRUNER, as next of kin of LEOLA BRUNER (DEPP), deceased,
Appellee, v. TIMBERLANE MANOR LIMITED PARTNERSHIP, and its successor

No. 103,028


2006 OK 90; 2006 Okla. LEXIS 94

December 12, 2006, Decided

Detra L. Bruner filed suit against Grace Living Center, alleging that her mother’s death was caused by the nursing home’s negligent care. Grace Living Center filed a motion to dismiss or in the alternative to compel arbitration and stay the proceedings. The district court found that the nursing home care did not involve interstate commerce; the federal arbitration statutes are not applicable to the nursing home admission agreement; and, the binding arbitration provision in the nursing home admission form is unenforceable under § 1-1939(D) and (E) of the Oklahoma Nursing Home Care Act, 63 O.S.2001, §§

1-1901, et seq. The district court denied the motion to dismiss or in the alternative to compel arbitration. Grace Living Center appealed. This Court retained the appeal. Affirmed