Nursing Home Litigation: Pretrial Practice and Trials, Second Edition

Editors: Ruben J. Krisztal, Patricia W. Iyer   Contributors: Patricia W. Iyer, Jeffrey M. Levine, Stephen Appelbaum, Julie A. Braun, David H. Brinton, Elizabeth A. Capezuti, Libby E. Edwards, Desmond Fuller, T. Patrick Ford, Jr., Benjamin W. Glass, III, Sanford I. Horowitz, M. Elizabeth Lanier, William T. Lawson, III, J. Roslyn Lemmon, Steven M. Levin, Pamela J. Lormand, Janet S. McKee, J. Scott Myers, John M. Parisi, John Patrick Petrullo, Roger Rider, Briana Rivera, Thomas Rockwell, Beth N. Rom-Rymer, Gerald B. Taylor, Gregory A. Witke, Sunny Kim, John M. Parisi ISBN 13: 978-1-930056-48-0 Copyright Date Ed:  October 3, 2003 Pages: 627 Binding Information: casebound  Size: 6 X 9 Inches (US) A must-have reference for any professional involved in nursing home cases. The litigation of neglect and abuse of the elderly in assisted living and nursing home facilities is unlike any other personal injury litigation. The second edition of Nursing Home Litigation: Pretrial Practice and Trials has been significantly expanded and will provide you with a detailed step-by-step look at how nursing home cases should be handled. The book's chapters are organized in a way that will help you with your case from pretrial to trial. The first chapter will give you tips and techniques for writing the demand letter. The following chapters provide insight for both the plaintiff's attorney and defense attorney on topics such as interviewing older witnesses, preparing staff for deposition, demonstrative evidence, voir dire, opening and closing arguments. Also included is a FREE CD-ROM of actual depositions of nurses, administrators, directors of nursing and upper management in nursing homes. This book is also available as an E-book. Click here to purchase and download: New topics include Handling older witnesses: the defense perspective Preparing nursing home staff for deposition The preparation and use of demonstrative evidence Fighting fraud in long-term care Voir dire, opening arguments and closing arguments Punitive damages The role of nutrition The Medicare "super lein" CD-ROM of actual depositions of nurses, administrators, directors of nursing and upper management in nursing homes Table of Contents Foreword Preface 1. The Demand Letter Ruben J. Krisztal, Esq. 1.1 Introduction 1.2 Notice of Intent to File Suit 1.3 Demand Letter A. Decubitus ulcer case B. Falls--Fractured hip and subdural hematoma C. Sexual abuse D. Improper use of medication--NSAIDs 1.4 Conclusion Endnotes 2. Dealing with the Older Witness: The Plaintiff's Perspective Julie A. Braun, J.D., LL.M. 2.1 Introduction 2.2 Interviewing the Older Witness A. Law office accessibility and environment B. Establish rapport C. Collect data 2.3 Motion Practice 2.4 Pretrial Conference 2.5 Preparing the Older Witness A. Extent and methods B. Tell the witness what to expect C. Tell the witness what to wear D. Tell the witness how to get there E. Tell the witness about physical barriers at the courthouse F. Tell the witness to bring visual and hearing aids G. Dress rehearsal 2.6 Trial Techniques and Tips from the Trenches A. Addressing the older witness B. Introducing the older witness to the judge and jury C. Physical effects of aging D. Direct examination of the older witness E. Cross-examination of the older witness 2.7 Educating the Judge and Jury A. Overcoming perceptions about impairments B. Refuting stereotyping and ageism C. Awarding damages 2.8 Conclusion Endnotes 3. Dealing with the Older Witness: The Defense Perspective Thomas Rockwell 3.1 Introduction 3.2 Why Use an Older Witness? 3.3 Interviewing the Older Witness 3.4 Deposing the Older Witness 3.5 The Older Witness at Trial 3.6 Conclusion 4. Handling Witnesses: Deposing Family Members J. Roslyn Lemmon and Pamela J. Lormand 4.1 Introduction 4.2 Initial Investigation--Preparations for Deposing Family Members A. Identification of issues and analysis of the nursing facility chart B. Identification and interviewing of essential nursing facility staff 4.3 Deposing Family Members A. Understand what motivates family members to file suit B. Explore the family members' relationship with the resident C. Discuss the reason for nursing home placement and the decision to choose a particular nursing facility D. Establishing the resident's physical and mental conditions E. Exploring family members complaints F. Investigate the relationship the family member had with the nursing staff 4.4 Conclusion Endnotes 5. Handling Witnesses: Deposing the Medical Director, Director of Nursing, Attending Physician, Nursing Home Administrator and Upper Management Gerald B. Taylor, Jr., Esq. 5.1 Introduction 5.2 General Questions A. Resident's rights B. Resident behavior and facility practices C. Quality of life D. Resident assessments E. Quality of care F. Nursing services G. Dietary services H. Dental services I. Pharmacy services J. Administration 5.3 Medical Director A. Duties and responsibilities B. Sample questions 5.4 Director of Nursing A. Duties and responsibilities B. Sample questions 5.5 Attending Physician A. Duties and responsibilities B. Sample questions 5.6 Administrator A. Duties and responsibilities B. Sample questions 5.7 Upper Management A. Duties and responsibilities B. Sample questions 5.8 Conclusion 6. Handling Witnesses: Working with Expert Witnesses William T. Lawson III, Esq. and Elizabeth Capezuti, Ph.D., R.N., F.A.A.N. 6.1 The Expert Witness A. Selecting the expert B. Contacting the expert C. Preparing your case for submission to the expert D. The expert's report E. Preparing your expert for trial F. Direct examination of your expert 6.2 Dealing with the Opposing Expert A. Evaluate the expert's credentials B. The opposing expert's report C. Consultation with your expert D. Anticipate opposition testimony E. Plan and limit your cross-examination 6.3 Conclusion References 7. Presenting Defense Witnesses for Deposition J. Scott Myers, Esq. 7.1 Introduction 7.2 Visiting the Facility 7.3 Meeting the Administrator and Staff 7.4 Obtaining the Nursing Home Chart 7.5 Determining Which Individuals Need to Be Deposed 7.6 Presenting the Witnesses A. The administrator B. The director of nursing C. The assistant director of nursing D. The charge nurse E. Other nurses F. Certified nursing assistants (CNAs) G. Former employees 7.7 Conclusion 8. Preparing Nursing Home Staff for Deposition J. Roslyn Lemmon and M. Elizabeth Lanier 8.1 Introduction 8.2 Basic List of Nursing Home Staff Members 8.3 Initial Meeting 8.4 Follow-up Meetings 8.5 General Deposition Preparation 8.6 Specific Deposition Preparation A. Administrator B. Director of nursing C. Staff (charge nurses) D. Certified nursing assistants (CNAs) 8.7 Conclusion Endnotes 9. The Preparation and Use of Demonstrative Evidence in Nursing Home Cases Stephen Appelbaum, C.E.P., E.P.I.C., Patricia Iyer, M.S.N., R.N., L.N.C.C. and John M. Parisi, Esq. 9.1 What is Demonstrative Evidence? 9.2 The Courtroom as a Classroom 9.3 Right-Brain/Left-Brain Learning 9.4 Preservation and Presentation A. Photography B. Videotape C. Scene diagrams D. Radiology and diagnostics E. Nursing notes and treatment records 9.5 Liability Exhibits 9.6 Timelines A. Use of timelines vB. Design principles 9.7 Anatomical Models 9.8 Medical Illustrations A. Sources of illustrations B. Custom illustrations 9.9 Instructional Videotapes 9.10 Medical Equipment 9.11 Computer Animations 9.12 Considerations in Selecting an Approach to Presenting Demonstrative Evidence A. Planning B. Budget C. Effect D. Comfort level 9.13 Overview of Presentation Systems A. Paper system B. Optical projector-and-screen systems C. Electronic projectors D. Digital system 9.14 Design Principles of Presentation Software A. Readability B. Comprehension 9.15 Chart Design A. Types of charts and design principles B. Mistakes to avoid 9.16 Evidentiary Considerations A. Relevance B. Materiality C. Unfair prejudice D. Hearsay E. Exceptions to hearsay 9.17 Types of Trial Exhibits 9.18 Basic Considerations for Use of Exhibits at Trial 9.19 Authentication of Exhibits 9.20 Conclusion Reference Additional Readings 10. Discovery Motions Briana Rivera, Esq. 10.1 Introduction 10.2 Procedural Strategies to Increase Your Chances of Success in Discovery Motions A. The complaint B. Understanding and identifying the information and documents you are seeking 10.3 Overcoming Common Objections to Discovery A. Peer review and quality assurance B. Third-party confidentiality C. Attorney work-product doctrine D. Not reasonably calculated to lead to discovery of admissible evidence 10.4 Obtaining Commonly Problematic Documents and Information A. Twenty-four-hour reports B. Incident reports C. Minutes of meetings D. Personnel records E. Budgetary information 10.5 Conclusion Endnotes 11. Fighting Fraud in Long-Term Care: The Use of the False Claims Act to Prevent Nursing Home Fraud and Patient Abuse John M. Parisi 11.1. Introduction 11.2 Criminal Liability for Healthcare Fraud A. Submission of fictitious or fraudulent claim to the U.S. government B. Conspiracy to defraud the government C. False statements D. Mail fraud E. Wire fraud F. Medicare and Medicaid fraud and abuse in anti-kickback prohibitions G. The Racketeer Influence and Corrupt Organizations Act (criminal RICO) H. Other important statutes relating to healthcare fraud and abuse I. State elder abuse statutes 11.3 The Federal False Claims Act (FCA) A. History of the False Claims Act B. Amendments to the False Claims Act C. Liability under the False Claims Act D. Proceeding under the Act E. Nursing home surveys and the Public Disclosure Bar 11.4 Preventing Nursing Home Fraud and Abuse A. Special fraud alerts B. Multistate investigations C. Special initiatives D. Special studies E. Nursing home False Claims Act cases 11.5 Conclusion Endnotes Appendix. The False Claims Act 12. Voir Dire, Opening Statement and Closing Argument: The Plaintiff's Perspective Roger Rider, Esq. and Ruben J. Krisztal, Esq. 12.1 Voir Dire A. Purpose B. Strategy C. Technique D. Jury questionnaire E. Strikes for cause F. Peremptory strikes G. Types of cases 12.2 Opening Statement A. Purpose B. Strategy C. Damages 12.3 Closing Argument A. Purpose B. Technique Appendix A. Opening Statement in Garnett Knapp Case Appendix B. Closing Argument in Garnett Knapp Case 13. Voir Dire, Opening Statement and Closing Argument--From the Defense Perspective John Patrick Petrullo, Esq. and Sunny Kim, Esq. 13.1 Voir Dire for the Defense A. What it is; what it is not B. A dramatization of the first six minutes of voir dire C. An approach to the next fifteen minutes D. Challenges 13.2 Opening Statement for the Defense A. The backdrop B. How to present the opening story in three easy pieces C. The chalkboard analysis 13.3 Closing "Final" Argument for the Defense A. The purpose of closing argument B. The basic rule on closing argument C. Some closing thoughts for the defense lawyer Endnotes Appendix A. Voir Dire Presentation Appendix B. Juror Questionnaire for the Kalmanson Case Appendix C. Excerpts from an Opening Statement for the Defense Appendix D. A Chalkboard Analysis of the Opening Statement Appendix E. Excerpts from a Closing Argument for the Defense 14. Punitive Damages in Nursing Home Cases T. Patrick Ford, Jr. 14.1 Introduction 14.2 Start at the Beginning 14.3 The Regulation 14.4 The Case Law 14.5 AHCA Citations 14.6 Facts and Photos 14.7 Ex-Employees--My Favorite 14.8 Staffing problems 14.8 Witnesses--Before, During and After 14.9 The Laundry List 14.10 Finances 14.11 Lessons Learned Appendix A. Sample Report by the Agency for Health Care Administration Appendix B. Sample Letter from the Agency for Health Care Administration Appendix C. A Motion to Add a Claim for Punitive Damages Appendix D. The Memo of Law Supporting the Motion in Appendix C 15. The Role of the Medical Expert in Evaluating Nursing Home Care Jeffrey M. Levine, M.D. 15.1 Introduction 15.2 Knowledge Base of the Expert Witness A. In general B. Geriatric syndromes and clinical practice guidelines C. The interdisciplinary team approach and care planning D. The regulatory environment 15.3 Qualifications of the Medical Expert A. In general B. Practice experience and training C. Certifications D. Academic achievement and teaching experience 15.4 Understanding Deviations from the Standard of Care A. In general B. Familiarity with adverse outcomes C. Psychodynamics of the nursing home D. Deviations from the standard of care often occur in patterns over time, and are system-wide 15.5 Working with the Medical Expert A. Initial contact B. Record review C. Expert opinion, report generation, and personal appearances 15.6 Summary References 16. The Role of Nutrition in Evaluating Nursing Home Care Janet S. McKee, M.S., RD, LD 16.1 The Common Denominator: Nutrition A. Nutrition influences clinical outcomes in nursing home residents B. Malnutrition C. Involuntary weight loss D. Dehydration E. Pressure ulcers F. The connection between quantity and quality of life 16.2 Standards of Nutritional Care A. Federal and state regulations B. State regulations C. JCAHO standards D. Qualifications and licensure practice acts E. Clinical nutrition protocols and guidelines 16.3 Key Nutrition Documentation A. Nutrition assessment B. Nutrition progress notes C. Food intake records D. Laboratory analyses E. Weight records F. Minimum Data Set (MDS) and Resident Assessment Protocols (RAP) G. Care plans H. Survey records I. Monthly reports, time records and contracts 16.4 Roles of the Registered or Licensed Dietitian, Dietary Manager and Registered Diet Technician 16.4 Nutrition-Oriented Questions for Healthcare Professionals 16.5 Summary Endnotes 17. Demonstrating Trauma: Effects of Sexual Abuse on the Elderly Beth N. Rom-Rymer, Ph.D., F.I.C.P.P. 17.1 A Vignette 547 17.2 Prevalence of Elder Abuse and Posttraumatic Stress Disorder (PTSD) 548 17.3 Diagnosing the Emotional Disturbance Proximately Caused by Sexual Abuse A. Axis I disorders: Posttraumatic stress disorder (PTSD) B. Axis I disorders: Adjustment disorder C. Axis I disorders: Acute stress disorder D. Axis I disorders: Other 17.4 Ethical Issues and Evidence for the Emotional Disturbance Proximately Caused by Sexual Abuse 17.5 Assessment A. The forensic interview and the environmental analysis B. Neuropsychological testing C. Psychological testing D. Psychological testing with patients who have a concomitant diagnosis of dementia E. Credibility F. Daubert G. Summary 17.6 Treatment of the Emotional Disturbance Proximately Caused by Sexual Abuse A. Treatment for depression-related symptoms B. Psychosocial treatment for depression C. Pharmacotherapy for depression D. Treatment for anxiety-related symptoms E. Psychosocial treatment for anxiety F. Pharmacotherapy for anxiety 17.7 Return to the Opening Vignette 17.8 Epilogue 17.9 Tips for Attorneys Endnotes 18. The Medicare "Super Lein": What Rights Does Medicare Really Have to the Proceeds of the Tort Claims? Benjamin W. Glass III 18.1 Introduction 18.2 The Arguments in a Nutshell 18.3 The Typical Claim for Reimbursement 18.4 What Does the Medicare "Secondary Payer Act" (MSPA) Really Say? A. The statute B. Who or what is a primary payer? C. What is a conditional payment? D. What about this word "prompt"? F. The current law F. How the government attempts to avoid the clear language of the current statute G. The arguments to be made in the traditional tort case 18.5 Conclusion Endnotes 19. Settlement Strategies Allen Fuller 19.1 Introduction 19.2 Mediation 19.3 The Case A. The "egregious" factor B. The law C. The plaintiff D. The defendant E. Unpredictability of valuation 19.4 Collectability 19.5 Motivation 19.6 Forum 19.7 The Demand Letter 19.8 Presentation 19.9 Conclusion About the Editor About the Contributors Index