Archive for the ‘Long Term Care (Nursing Home ALF)’ Category

Nursing Home Resident Room Mate / Witness Disclosed

Tuesday, April 13th, 2010

The First District Court of Appeal held that a plaintiff in a nursing home case could, under the facts of the case, obtain the name and contact information for the decedent’s room-mate at the nursing home who potentially was a material witness.

In Delta Health Group, Inc. d/b/a Rosewood Manor v. Estate of William G. Collins (Clark, Benton and Van Nortwick), the defendant facility argued that Chapter 400 privacy rights trumped the plaintiff’s need for this information in discovery.  The Panel held that the trial court had properly considered all interests and that the request and order were sufficiently narrow.

Florida Nursing Home Case Clarifies Admissibility of Treating Physician Testimony on “Negligence” and “Violations of Resident’s Rights”

Monday, March 22nd, 2010

In long term care cases, it is common for a plaintiff to obtain testimony from treating and expert physicians that certain acts or omissions by the nursing home or ALF was in violation of resident rights (Chapters 400 or 429).  Conversely, it is likewise common for defendant facilities to obtain similar testimony that there were no shortcomings in their care since involved health care practitioners are required by law to report suspected abuse or neglect and the absence of such reporting speaks for itself.

The case of Estate of Caulie Jackson Murray, Sr. v. Delta Health Group, Inc. and P. Carolyn Antone involves the question of what statements an expert can make before a jury (for the purposes of this review, consider “treating physicians” as experts).  The Second District Panel (Morris, Northcutt, and Villanti) held that the defendant could not introduce testimony by a treating physician that the facility was “not negligent” because that specific testimony applies a legal standard.

The Panel likewise appears to indicate that a treating physician’s (or anyone’s) testimony about whether something “violated a resident’s rights” may also be excluded as invading the province of the jury.

Instead, the court suggests that treating physicians should be listed/disclosed as “experts” when they are offering opinions based upon their training and experience AND that the magic words involve whether the physician feels there was a “violation of the standard of care.”  As the court pointed out, “the distinction is to some degree a matter of semantics but that it is a necessary distinction nonetheless.”

First District Rules on Production of Incident Reports in Nursing Home Case

Wednesday, December 23rd, 2009

The First District handed down a decision  confirming that production of nursing home incident reports was appropriate when the plaintiff met the two-prong test to overcome the work product privilege.  Oddly enough, there was no discussion of the application of the nursing home-specific incident report production standards set forth in Florida Statute Chapter 400.  The case is Paradise Pines Health Care Associates d/b/a Harts Harbor Health Care v. Estate of Bettye Jean Benekin (Hawkes, Kahn, Clark).

We are provided few details of the underlying claim or the information sought.  If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident.  The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports.  The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.”  Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question.  The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged.  Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

When Must a Plaintiff Elect Remedies in a Nursing Home Suit Under Florida Statute 400.023(1)?

Thursday, July 2nd, 2009

Good question, as the Second DCA provided nominal guidance in Estate of Trollinger v. Mariner Health Care, Inc. (MHC) d/b/a East Bay Nursing Center et al. While the Panel (Fulmer, Kelly and Altenbernd) affirmed the trial court’s dismissal of the complaint, a clear rule fails to emerge.

During the course of tort reform to Chapter 400, the Nursing Home Resident’s Rights Act, section 400.023(1) was inserted which required the plaintiff to elect either survival damages or wrongful death damages.  As the Panel properly lamented, the statute fails to say when the election shall occur.  In this case, the trial court dismissed the action at the pleading stage and the plaintiff was called upon to amend the complaint, choosing their damages.  Rather than doing so, they appealed.

The Panel held that this was not an issue for certiorari relief since the plaintiff could not demonstate irreparable harm if the case proceeded.

In a concurring opinion twice as long as the main opinion, Judge Altenbernd wrote that the statute requires an election of damages, not an election of causes of action, and suggested there was little reason that the election needed to be made prior to the jury returning a verdict on both claims.  Nonetheless, the Judge acknowledged that election of remedies was a complex theory, leaving the door open to varying arguments and analysis which was not provided in the opinion.

The Karate Kid, Part II download movie Four Rooms download movie New Rose Hotel download movie The Man download movie America's Sweethearts download movie Dracula download movie Riding Giants download movie Let's Stick Together download movie Dick Tracy download movie A Date with Judy