Nursing Home Litigation and Admissibility of Evidence: Proving Or Challenging Authentication, Relevance and Hearsay

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

Nursing Home Litigation and Admissibility of Evidence: Proving or Challenging Authentication, Relevance and Hearsay

THURSDAY, JULY 20, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Today’s faculty features:

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

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.

6 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.

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.

8 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.

9 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.

10 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. 11 Types of critical evidence in nursing home injury cases

Key Exhibits • Advertising • Records concerning other nursing homes owned by • Anatomical charts, graphs, drawings and demonstrative Defendants aids • Staffing Documents • Business/Admin. file of Resident • Training/performance records • Census records • Owner information • Financial documents of the nursing home and its • Charts of relevant times and events owners/operators • Complaints • Medicare Cost Reports • Consultant Reports • Medicaid/Oklahoma Healthcare Authority Cost Reports • Daily Time Sheets • DHS investigations/inspections • Defendants’ Corporate Financial Information • Okla. DOH investigations/surveys/inspections • Deficiency Reports • Death Certificate • Government investigations of Defendant Nursing Home • Personnel files • Documents, records and things concerning Defendant • Administrative File Nursing Home employees including criminal • Brochure investigation records and personnel material • Website • Employment records of personnel at Defendant Nursing • Direct Care Hours Sheets Home • Employee Manual • Floor Plan • Grievance Log • In-Service documents • Handwritten schedules • Medical bills-Relevant • Incident Log • Incident reports • Medical/Nursing Home records- Relevant • Medical Director contract • Nurse Aide licensure information • Monthly Staffing hours • Nurse Licensure information • Quality of Care documents • Oklahoma DHS/DOH material concerning any nursing • Timecard alternative report home owned, operated or administered by any of the • Regulatory investigation documents of Defendants’ owners of Defendant Nursing Home employees • Policies and procedures • Electronic communications

12 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 [email protected]

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.

14 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)

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.

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

17 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

18 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????

19 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

20 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 [email protected]

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

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

23 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

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)

25 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

26 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

27 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

Nursing Home Litigation and Admissibility of Evidence PART 3 – HEARSAY

Ahsan A. Jafry, Esq Burns White LLC [email protected]

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

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

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”

32 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

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

34 makes this inadmissible

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 35 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

36 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