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FDCC ARTICLE OF THE MONTH
 

The FDCC promotes scholarship among its members to benefit the defense community.  At each of our semi-annual meetings, over twenty papers and programs are presented on a wide range of legal topics.  In addition, for over half a century, FDCC members have published law review style articles in the Federation of Defense & Corporate Counsel Quarterly

 


 
This month's featured article by...

David J. Varriale
Kaufman, Borgeest, & Ryan, LLP
 

IN DEFENSE OF NURSING HOMES

 

Nursing home claims can involve complicated allegations of negligence pertaining to decubitus ulcers, falls and fractures, dehydration and malnutrition, fecal impaction, urinary tract infections and other infections, improper use of restraints, aspirations, choking, physical and mental and verbal abuse, mismanagement of medications, elopement, and other alleged violations of resident’s rights.  In order to effectively defend skilled nursing facilities against such claims of nursing home neglect, defense counsel must remove some of the common misconceptions that can affect the jury.  At trial of these matters, typical mistakes made by defense counsel involve poor communication and education of the jury.  Some of the common areas where the jury needs to be better educated are detailed below.
 

A.    Age Related Declining Health - Despite Good Care

Our skin thins, and is less elastic, as we age.  This thinning is most evident in the subcutaneous layer of skin, which not only houses blood vessels and nerves, but acts as a shock absorber protecting these tissues.  Further, the skin suffers the effects of long term sun damage.  Over time, the bones and joints wear and tear, leading to osteoarthritis and chronic pain syndromes, as well as osteoporosis and brittle, fragile bones.  Age related decline in vision and hearing manifest as cataracts and presbycusis hearing loss, respectively.  From a urogenital perspective, men suffer from benign prostatic hyperplasia, which can lead to urinary incontinence and urinary tract infections.  Older women are also at risk for urogenital problems as they age due to hormonal declines.  The elderly are at greater risk for falls, with increased stiffness, decreased muscle strength, and decreased reflexes and vision, all of which predisposes one to falls.  Chronic medical conditions such as diabetes can affect balance, and medications to treat chronic disease can cause dizziness and contribute to the occurrence of falls.  Kidney function decreases with age.  And, although less than one half of one kidney is needed to maintain “normal” function, the elderly are especially vulnerable to any stress impacting kidney function such as infections and medications due to the lack of kidney reserves.  Decreased neurological function, heart disease, cancer, and Alzheimer’s disease, are all more common as one ages.  This medical list is hardly exhaustive, but the implications are indeed clear.  General good health typically declines with age, and this decline essentially removes the body’s ability to respond to even the mildest of stressors.  Moreover, the best professional nursing care cannot reverse the trend.
 

B.    Nursing Home Claims are Nursing Malpractice Claims - Not Simple Negligence Claims

These claims involve matters of professional nursing judgment, with respect to professional nursing care provided in the clinical nursing home setting.  These claims are complex, and not matters of simple negligence as plaintiff’s counsel often tries to argue.  It is extremely important for defense counsel to assert that plaintiff is pleading and pursuing claims sounding in professional nursing negligence in the nursing home setting.  Even if your case is a “simple” fall, it still should be defended as a professional nursing negligence claim when it takes place in the nursing home setting, and there is a governing care plan in place, and care measures being done for the resident by the nursing home staff.  If defense counsel frames the claims as sounding in professional nursing negligence in the nursing home setting (pursuant to state and federal statutes/regulations), then plaintiff’s counsel is forced to consider such issues as statute of limitations, notice requirements, filing deadlines, and more importantly, expert witness testimony, which would typically drive a small to medium sized expense case into the potentially higher and more unacceptable expense range.  Remember that a case involving professional nursing negligence usually requires significant damages because of the difficulty and expense required by plaintiff’s counsel to prosecute it through trial.
 

C.   Injuries to the Elderly Often Have Limited Value

Often, the records from a prior hospital or visiting nurse service can show that the resident or decedent already had declining health requiring extensive care and/or services at home.  This can be particularly effective, for example, when the opposition claims that the decedent was independent and capable of shopping, ambulating, and enjoying a full life in the community.  Frequently, these claims are proven to be false or exaggerated.  The prior records from the hospital or VNS service can often temper the value of these cases, and expose the plaintiff to the jury for overreaching on their damages claim.  This makes the jury all the more inclined to render a defense verdict in favor of the nursing home.
 

D.   Use Experienced and Credible Experts

If the foregoing may be called, “Jury Education”, then the “Use of Experienced and Credible Experts” is the “engine” to achieve that purpose.  Credible experts do this by virtue of their own knowledge, competence, and charisma.  An experienced expert that has the ability to teach and convey medical concepts to non-physicians is invaluable in getting the relevant medical facts presented to the jury.

At trial of these matters, a variety of choices will emerge for theme development.  Defense counsel must guard against plaintiff’s efforts to focus on the alleged negative conduct of the nursing home staff, and to suggest abuse and neglect.  Moreover, defense counsel must anticipate the argument that nursing homes place profits over people.  This is a central theme typically used by plaintiff’s counsel in nursing home cases, and therefore, throughout the course of the trial this theme should be defended against vigorously with the proper witnesses, proofs, and presentation of evidence.  No one can do this better than the right expert at the right time.

The goal in defending these nursing home cases at trial is to be the better prepared, and to make an orderly presentation of the relevant facts at issue.  There are many documents which will need to be explained to the jury in an orderly and thematic way to maximize the effectiveness of the presentation.  This educational approach is essential to properly defend the facility, and convince the jury.  A well prepared defense attorney, with a credible expert, provides the best opportunity to show the jury, early and often, that the plaintiff’s elements of proof are lacking, as to both witness testimony and demonstrative evidence.  Defense counsel must keep the jury focused on the plaintiff’s lack of proof, and convince the jurors to believe in the good care provided by the nursing home facility.
 

            Conclusion

It is up to defense counsel to effectively teach the jury about the complex and diverse nursing concepts and care measures associated with claims of professional nursing negligence in the nursing home setting.  Using deliberate and thoughtful arguments when explaining the facts of the case, and using the appropriate experts to help dispel common nursing home misconceptions, can help defense counsel counter plaintiffs’ efforts that seek to exploit these claims.

Finally, successful jury education continues throughout the entire trial and culminates with a strong closing argument.  An appreciation of the relevant facts about the nursing care plan, care measures, and interventions is key to that success.  An effective strategy in defending these complex cases must continue with the collection and presentation of all corroborating evidence, application of solid trial advocacy skills, and the use of appropriate expert witnesses skilled in the areas of geriatrics and nursing care in the nursing home setting, to maximize the defense of your nursing home clients.  Trial counsel should bear these strategies in mind, particularly because their efforts can often make the difference in successfully defending professional nursing home claims, and protecting their clients from suffering negative outcomes. 
 

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