deposing nursing home employees and owners in neglect …

Deposing Nursing Home Employees and Owners in Neglect and Abuse CasesQuestioning Deponents, Using Demonstrative Exhibits, Raising and Defending Objections, Dealing With Difficult Deponents

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THURSDAY, APRIL 22, 2021

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

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

Michael A. Brusca, Partner, Davis & Brusca, Ewing, NJ

Monica C. Fillmore, Member, Burns White, Cherry Hill, NJ

Jonathan Steele, Attorney, Steele Chaffee, Kansas City, MO

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Mike Brusca609.786.2540

[email protected]

Deposing Nursing Home Employees and Owners

in Neglect and Abuse Cases

Roadmap Establish Goals◦Where are we going?◦ Key Depositions Corporate DesigneeDirector of NursingAdministratorMDS Coordinator◦Resident Assessment Instrument Manual

Anticipating Defenses◦O.S.D.◦Non-Compliance◦Unavoidability

Establish Goals

Establish Goals

Let’s take a lesson from Lewis Carroll

Don’t be Alice!

Establish Goals‘Would you tell me, please, which way I ought to go from here?’ [asked Alice.]‘That depends a good deal on where you want to get to,’ said the [Chesire] Cat.

Establish Goals‘I don’t much care where—’ said Alice.‘Then it doesn’t matter which way you go,’ said the Cat.

Establish Goals‘—so long as I get somewhere,’ Alice added as an explanation.‘Oh, you’re sure to do that,’ said the Cat, ‘if you only walk long enough.’

Establish GoalsTremendous Advantages◦Pick your cases! ◦Meds in advance◦Data in advanceCMSCost ReportsState data◦Experts in advance

Establish Goals

Frame the case Map discovery before you even file the lawsuitGo into your depositions with a plan

Establish GoalsWhy am I taking the deposition?◦Confirm trial statements for opening◦Undermine future defense experts◦Layout my case◦Learn something new –corporate issues

Establish Goals

Key Depositions◦Director of Nursing◦Administrator◦Minimum Data Set (MDS) Coordinator

Establish GoalsBut first a word about:◦Corporate Designee (aka PMK, Corp. Rep. Dep.)Rule 30(b)(6)State ruleSpecific issuesCorporate issuesNotice requirementsDocuments

Establish Goals

Director of Nursing

Establish Goals

Entire Clinical Case

Establish Goals

Director of NursingTop clinical person in the buildingManage the Nursing Department Audit charts

Establish Goals

Director of Nursing◦Basics the facility the relevant medicinegeneral applicable nursingFederal/State regulationssurvey process

Establish Goals

Director of Nursing◦Standard of careWhat is it?◦ It’s a medical standard◦Staff had to meet it every shiftWhose job is it to be sure that standard is met?

Establish GoalsDirector of Nursing◦Chain of commandCorporate NursesVP OpsRegionalConsultantsOfficer involvementMeetings

Establish GoalsDirector of Nursing◦StaffingImportanceLevels – direct link to care by CMSTurnoverMoraleContractorsDifferences between LPN and RNCorporate involvement/budget

Establish Goals

Director of Nursing◦All clinical and charting issues in my case◦Lay out most of my trial documents

Establish Goals

Administrator

Establish Goals

Administrator◦F837 – “Responsible for management of the facility”◦Supposed to be in charge

Establish GoalsAdministrator Topics◦Chain of command◦Role of “corporate”◦Role of “management companies”What are they really doing?◦Cost reportsDid you know you were paying rent

Establish Goals Administrator◦How much authority do they really have?Write a check?Sign a contract?Capital expenditure?File a POC?Get insurance?Union negotiation?Set staffing pattern?Set a budget?Exceed budget?Hire or fire a DON or Medical Director?

Establish GoalsAdministrator◦StaffingImportanceLevels – direct link to care by CMSTurnoverMoraleContractorsDifferences between LPN and RNCorporate involvement/budget

Establish Goals

MDS Coordinator

Establish Goals

MDS Coordinator◦The smartest nurses◦Nurses with Purses!◦They do the Minimum Data Set◦They don’t want to go to jail

Establish Goals

Minimum Data Set (MDS)◦Most comprehensive assessment◦Dated◦Done at least quarterly◦Sworn and certified◦Determines reimbursement◦Triggers Care Assessment Areas (CAA)◦ Foundation of the Care Plan

Establish GoalsMinimum Data Set (MDS)◦ Covers everythingCognitive statusBehavioral issuesNon-complianceSkin FallsADLs e.g. bed mobilityContinenceRestorative NursingWeight

Establish Goals

Minimum Data Set (MDS)◦You will find discrepancies aka FRAUD

Establish Goals

Minimum Data Set (MDS)◦Governed by the Resident Assessment Instrument (RAI) Manual

Establish GoalsRAI Manual◦ Resident Assessment Instrument (RAI)MDS + CAA – basis for care plan◦ Covers each Section of the MDS◦ Explains Why the section is thereWhat is requiredHow to assess and code◦Updated every October 1

Establish Goals

1309 pages

1309!

Establish Goals

War and Peace

Only 1,225 Pages

Establish Goals

NO PICTURES

0

Establish Goals

Poor Attention Span15

SECONDS

Establish Goals

Don’t worry!Linked IndexSearchableFollows the MDS◦Sections A-Z

Establish Goals

RAI Manual – Section GG

INTENT

RATIONALE&

ASSESS &

CODING

Anticipating Defenses


Tackle defenses in discovery◦They need an expert to say things. ◦You can force deponents to say things the expert would like to avoid.


Defenses◦O.S.D.◦Non-Compliance◦Unavoidable


Dumpster Defenses


O.S.D.◦MDS – J1400 Prognosis◦Getting therapy?◦Nurse notes document declining?◦Care Planning for end of life?◦Care Conference discussions?◦Hospice/Palliative care offered?


Non-Compliance◦MDS – Section E Behavioral Issues Rejection of CareRAI instructs to work with the family – did they?

◦In Care Plan?


Non-Compliance◦In nurse notes – why?Are they writing it down because they cannot meet the SOC?


Unavoidable◦ “Unavoidable” appears in RAI 2x

◦ Can’t give up ◦ “While we recognize that there are often unavoidable declines,

particularly in the last stages of life, all necessary resources and disciplines must be used to ensure that residents achieve the highest level of functioning possible (quality of care) and maintain their sense of individuality (quality of life)

◦ Can’t make it up later◦ “Facilities must ensure that residents improve when possible and

do not deteriorate unless the resident’s clinical condition demonstrates that the decline was unavoidable.


Unavoidable◦Basic NursingACCIR – Assessment, care plan, communicate, implement, reviseIf breakdown in this process, how can say unavoidable?


Unavoidable◦“Monitoring and Evaluate Interventions”FTAG Guidance to SurveyorsNot being done or not working


Unavoidable◦Co-Morbidities are Pressure Ulcer Risk Factors (RAI M-2)◦More Co-Morbidities equals higher risk◦Higher risk means more close monitoring


Unavoidable◦What study?NIH - Hemodynamic Instability and cachexia and/or terminally ill in hospital◦Out of 1464 – only 19

Am Jour Crit Care - CHF + chemical sedation + systolic below 90 with 1 or more vasopressors less likely◦ “moreover, when preventive interventions are not documented and implemented appropriately, avoidable HAPIs occur.”

◦ People like this are not in nursing homes

Anticipating DefensesUnavoidable◦With Falls (RAI J-26) Falls are a leading cause of injury, morbidity, and mortality in older adults. A previous fall, especially a recent fall, recurrent falls, and falls with significant injury are the most important predictors of risk for future falls and injurious falls. Persons with a history of falling may limit activities because of a fear of falling and should be evaluated for reversible causes of falling. Evaluate physical environment and staffing needs


“Turn dumpster defenses into dumpster fires”™

Roadmap Establish Goals◦Where are we going?◦ Key Depositions Corporate DesigneeDirector of NursingAdministratorMDS Coordinator◦Resident Assessment Instrument Manual

Anticipating Defenses◦O.S.D.◦Non-Compliance◦Unavoidability

Deposing Nursing Home Employees and Owners

in Neglect and Abuse Cases

Monica Chheda Fillmore, EsqBurns White [email protected]

Deposing Nursing Home Employees and Ownersin Neglect and Abuse Cases

The Role of the Fact Witness:

• Providing life to the documents

• Showing the human side of the care at issue and debunking the

public perception

I.

Providing life to the documents



• In most cases, by the time the fact witness is being deposed, the care at issue occurred up to 3 years ago.

• Importance of reaching out to potential fact witnesses early:

• Finding out information that is not in the chart before taking the Plaintiffs deposition.

• Finding out who is willing to participate/who will be an adverse witness

• The longer the time, the more memories will fade.

• Impossible to document all information, so need to explain habit and custom.

Documenting by Exception

• The standard of care in nursing homes is to document by exception. This means that they generally will only document any new information, change in condition and any pertinent findings.


• Use the fact witness deposition to allow the witness to take the Plaintiff through the care

• But have the witness only testify to what they actually know/were involved in.


• Limiting fact witnesses to the facts– not expert testimony/standard of care.

• Natural for witnesses to want to know what the entire case is about, but in prep limit them to their involvement.



Former employees

• Obtain the address/contact information for former employees and try to speak with them at the onset of the case.

• If they are not willing to participate obtain their personnel file. It may show bias against the facility.


II.

Showing the human side of the care at

issue and debunking the public perception


• Plaintiffs will try to always portray nursing homes as profits over people.

• Show the truth– that the employees/care givers are caring and giving people.

• They care a lot about their residents.

• For many long-term care patients the Nursing Home is their home.

• Allow witness to establish the human side of the nursing care.


Deposing Nursing Home Owners


Differentiating administrative side vs. nursing care

• Plaintiffs will try distract from the distinct nursing care at issue by trying to demonize the nursing home ownership.

• They will focus on the profits without differentiating the costs of the care.

• They will also villainize any profits by attempting to equate any gains to negligent care.


Policies vs. Standard of Care

• Owners generally are not involved in the day to day nursing care decisions.

• If the facility is one of several that have the same parent company, the provision of care is always facility specific.

• The policies promulgated are to provide a baseless, but care much be specific to the individual patient.

• Administrative costs vs. nursing care.

• Costs for nursing care generally controlled by CMS and insurance companies.


Use of State Surveys

• State Surveyors only look at a group of residents to show a sample population of the facility.

• The facilities keep a list of the residents included in this group.

• Often in this cases, the residents have been at the facility for multiple years, so it is important to determine if they were a part of the surveys from any of the years of the residency.

Staffing Levels

• Plaintiff ’s attempt to use the 5 star system to show claims of understaffing.

• However, CMS has stated that this system is faulty.

• The determination is often based on the levels of nursing –NP vs. RN vs. LPN vs. CNA– however this alone does not show that care was not appropriate.

• Also takes into account the medication and restraints in use, regardless of the type of facility– i.e. pysch unit would have more restraints and medication, but this is not factored in the score.


Staffing Levels

• Each facility has to report their daily staffing levels to the State– if understaffed they would be cited.

• The staffing schedules and acuity/census documents show the staffing required.

• Important to look at the staffing for the units at issue– not the entire facility.


Claims of Negligence Per Se vs. Negligence

• Plaintiff ’s will often try to employ the Federal and State Regulations to attempt to show claims of negligence.

• However, the Federal Regulations (F tags) and OBRA Regulations do not offer a private cause of action.

• Instead the Plaintiff may only use the Regulations as evidence of the standard of care through competent expert testimony.



Use of State Regulations

• Many states have their own state regulations, including Nursing Home Acts.

• Plaintiff ’s often like these because they may allow for recovery for attorneys fees and treble damages.

• However, these too have limitations in private causes of actions.

• The defense may also try to limit the use of these regulations under the theory of double recovery.


http://www.hpm.umn.edu/nhregsplus/NHRegs_by_State/By%20State%20Main.html

http://www.hpm.umn.edu/nhregsplus/NHRegs_by_State/By%20State%20Main.html

Questions?
