The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Nursing Home Litigation and Admissibility of Evidence: Proving or Challenging Authentication, Relevance and Hearsay Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, JULY 20, 2017 Mark A. Cox, Founder, Mark A. Cox, Edmond, Okla. Ahsan A. Jafry, Esq., Burns White, Cherry Hill, N.J.
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The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
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)
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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.
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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
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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
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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????
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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
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Nursing Home Litigation and
Admissibility of Evidence
PART 2 – HABIT v. CHARACTER
Nursing Home Litigation and Admissibility of Evidence
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
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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
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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
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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)
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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
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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
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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
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Nursing Home Litigation and
Admissibility of Evidence
PART 3 – HEARSAY
Nursing Home Litigation and Admissibility of Evidence