While some litigation techniques remain constant across the board in every case, such as knowledge of the rules of evidence, and the ability to conduct direct and cross, there are certain things that are unique to nursing home cases or at least more prevalent, or important, in nursing home cases.
A. Voir Dire
It is very important in nursing home cases to identify jurors who may have attitudes that will not help you. In addition to the normal “jury bias” type of questions which are present in every personal injury case, in nursing homes you want to identify people who have negative attitudes about the elderly. Some people, even though they may not have articulated the thought yet, do not place the same value on an elderly person’s last years as you do.
No jurors will voluntarily state that they do not like old people. However, asking questions designed to discover where their parents spent their last years can be illuminating. It is especially effective to encourage some discussion among the jurors. “Does anyone agree with Ms. Jones? Disagree?”
B. Opening Statement
It is critical in nursing home cases to be certain that you have the nursing home’s conduct under scrutiny from the very beginning of the case. It is a mistake to focus the case on what was done to the resident. While the injuries are important, and damages are always your final goal, you have to win the case first and the focus should always be on the nursing home itself and what the nursing home did and did not do, what the regulations require and the nursing home did not do and what the survey found that the nursing home did not do.
Although it has often been felt that damages can drive liability, the fact is that most of today’s jurors are “turned off” by appeals (or perceived appeals) for sympathy. The personal responsibility feelings are so strong, and the anti-lawsuit bias so great, that appeals for sympathy have a devastating effect on the jury’s opinions about the case.
It is safer, and wiser, to focus the jurors’ attention on the bad conduct of the nursing home first. After the jury has concluded that your client was wronged, then you can present the damage testimony.
As with opening statement, the choice of witnesses is critical. It is my opinion that in most cases, absent some extraordinary circumstance that I cannot envision, you would start the case with a nursing home employee or representative. That witness would either be a nurse who did not chart, a person who left your client alone for the fall, or someone through whom you can put in everything the nursing home should have done but did not do. Damage witnesses and the “whiners and criers” should be later in the case, after the jury has concluded that the nursing home is indeed at fault for your client’s injuries.
Also on the topic of witnesses, there are often factual disputes in nursing home cases. For example, the nursing home may say that it kept a pillow or sponge between a patient’s legs all of the time in order to avoid pressure sores. The pressure sores, however, developed and worsened.
In medical malpractice cases, most of us follow a rule of thumb which, quite simply, is that the patient never wins a fight with a health care professional over entries in the records. The jury will most often not believe that a health care professional falsified records before a lawsuit was even anticipated.
In a nursing home case, that rule of thumb is not as firm. If you have enough collateral evidence of “sloppiness,” your chances of convincing the jury that the nursing home was covering up for its shortcomings are fairly good. You are giving the juror other reasons to believe the records are wrong. If you have family members who say they were there and never saw pillows, you will want to find every family member or friend who visited the client and establish through their testimony that they never saw pillows or cushions of any kind.
Lay witnesses can also be very valuable in establishing the patient’s mental status. An often-seen defense in nursing home cases is the idea that the patient didn’t really know what was going on or didn’t feel the pain or didn’t suffer. When witnesses can establish that the patient played cards or reminisced about stories or circled their own choices for meals on the menu for lunch, that helps the jury to have more empathy with your client and does increase the damage award.
As in any type of case, it is critical to have a theme and to convey that theme throughout the case. The theme goes in through voir dire, and in opening, and through your witnesses, and during the cross of the defense witnesses…and in closing. The closing argument is the time to tie all references to the theme together in a coherent whole.
Here are some potential nursing home themes:
(a) Head in the Sand: the nursing home ignored warning signs, like prior falls, indicators of the patient’s weaknesses, and pretending everything was okay.
(b) Betrayal of Trust: Mary’s family trusted the nursing home to take care of Mary, and the nursing home failed to do so.
(c) Acceptance of Responsibility: The nursing home assumed responsibility for caring for John, failed to fulfill the responsibility, and now denies that it should be held responsible for its failure.
(d) Greed: The nursing home put profits before people, money before good care.
The defense, of course, has its own themes which you must anticipate and respond to. Some frequently-seen standard defense arguments are:
(a) No Damages: She was not going to live long … her quality of life was very poor … she didn’t really know what was going on around her.
(b) Lousy Family: Attack the family. They didn’t come to Care Plan meetings. They never visited.
(c) It was the Patient’s Fault: She fell, we didn’t drop her. She was a problem resident. She was an attention-seeker. She was an escape artist, always disconnecting the alarms. She was combative. She was non-compliant. We can’t watch the resident minute of the day.
(d) The Cause Defense: She was going to die of something else anyway. She had pressure sores, but she was a diabetic, what would you expect? God himself couldn’t keep her, with all her problems, from developing pressure sores.
(e) Too Many Elderly: this one is more subtle, but essentially asks the jury to forgive the nursing home because society – not just one nursing home – has to address the issue of the growing elderly population.
There are three key elements to be stressed in the closing argument of a nursing home case:
(1) Trust: Why and how your client or client’s family trusted the nursing home.
(2) Breach of Trust: How the nursing home breached the trust of the patient and the patient’s family. The most effective cases are those which have falsified records, or operating budgets which are unreasonably low. The “best” breaches are those intentionally done to increase profits. These include staffing shortages, budgets which clearly should have indicated that the nursing home was unable to admit your client when it did.
(3) Damages: Most nursing home injuries are malnutrition, pressure sores, dehydration, and broken bones. Speak of these with vivid, descriptive terms. Use visual aids, such as pictures or x-rays. This is far different from a whiplash case – be sure the jury realizes that. Don’t forget about mental anguish.