As published in The Chicago Daily Law Bulletin
More tips from top lawyers, Margaret Battersby Black and Laura Lally.
Margaret Battersby Black:
1. Carefully chart the progression of the wound. Link periods where the nursing home isn't doing what they should.
More tips from top lawyers, Margaret Battersby Black and Laura Lally.
Margaret Battersby Black:
1. Carefully chart the progression of the wound. Link periods where the nursing home isn't doing what they should.
2. Photos are key. If none, use a medical illustrator to create graphics from records and descriptions.
3.Know all potential causes of damages related to the wound, like a Foley catheter or UTI, and each surgical procedure like a flap or a rectal pouch. Count the number and types of interventions.
4. There’s shock value in graphic descriptions. “If there's gross junk in it, like dead skin,” say so.
5. A great lay witness may say, “When I walked in I could just smell it rotting and it was gross. It was like a dead animal in there.” But, caution. Someone saying they never, ever saw staff do anything will be easily impeached.
6. The plan care coordinator (MDS) may be deposed about the Medicare form submitted. “If I can get them submitting false information on that form, the only real excuse is carelessness.”
7. “I like it even better if a caregiver is unfamiliar with or doesn't know the standard of care.”
8. Big medical bills make settlement easier. If you've got a nasty pressure sore, good pictures, and horror stories about pain, grimacing and bad smells, low bills may anchor downwards.
9. “I want my experts to bill a lot because I want them to prepare a lot. I'll have a nurse for nursing deviations, and I'll have a doctor for causation and to combat the defense 99.9% of the time that it was unavoidable because the person was sick or immobile or noncompliant.” Nutritionists, dieticians, billing and staffing experts may also be used.
10. “With an older adult surviving child, it’s about how mom died. Seeing how she died and knowing that you put her in a place you trusted to care for her and that she raised you and she sacrificed and she had a right to live the last six months of her life. We feel this grief and sorrow because we weren't able to give her the peaceful end that she deserved.”
11. “I'm usually not going to take a case when the defense can prove unavoidability.” For example, where the facility has done everything to prevent it, but this person has stage four terminal metastatic cancer and is on chemo and radiation and steroids and their skin is breaking down from the inside out, and it's not a bedsore, it's just the result of other issues.
Laura Lally:
1. Plaintiff’s counsel should “contact me early before I spend a bunch of money on defense costs. If I ask for your bills or your Medicare lien, subsequent records, or death certificate and you refuse, I'm not able to evaluate your case and give you money, and yes, I would prefer to resolve it early.”
2. “I hate when a place is caught flat-footed because the Department of Public Health comes in a year and a half after discharge, but the chart isn't all in one organized place, so they don't give the wound care records because they weren’t part of the regular chart.”
3. “Defense counsel needs to review meticulously to see when the sore developed, what procedures were done. Did they have a hip replacement on their left hip and were in surgery on their right hip for a long time and a wound develops a few days later?”
4. “No alterations in the records!” If those records have been requested, you can't innocently change the records. On the other hand, don't pretend like a check mark that goes into two boxes is an alteration.
5. Nursing homes have huge turnover. We have foreign-born people afraid of the process, who've never been to court, who think they're going to be deported, who think they're going to lose their license.
“Often, it's dramatically upset people who leave on poor terms. Make friends with the staff, and say, ‘If you're ever contacted by anyone, you are going to have representation through this facility at no cost to you. Please contact me.’ Make it clear, no matter what terms you leave this community on, we will stand by you and we will provide you representation. Don't think [plaintiff’s counsel] is your friend if you get a subpoena. We will come and represent you.”
6. Document refusal of care. "’Well, the resident refused it on a Saturday.’ That's fine, residents have a right to refuse. What did you do about it? Did you tell the doctor? Did you tell the family? Did you try and convince their resident? I have residents who say, ‘I'm 85 years old. I want to be able to sit up in my wheelchair even if it is causing pressure to my backside.’ Your clients will think that's a get out-of-jail-free card. It's not.
“You have to note you've educated the plaintiff, and you've talked to the family more than one notation in a nine-month chart.”
7. “I want my expert doctor to be at the top of their field to get the medicine and the causation precisely. I want the nurse to be relatable and able to paint a picture of what it's like to be a nurse and what's required at a nursing home. It isn't one-to-one care.”
8. “I like healing, because it's hard to argue, ‘Well they were horrible nurses and then one day they woke up and became good nurses.’”
9. “I like diagnoses that would account for the wound, like diabetes, significant heart disease, a resident who isn't eating but has said they don't want a feeding tube or their family said they don't want a feeding tube. Some families say, ‘I don't want this, but I also want my mother to not have any skin breakdowns.’”
10. Of course, nurses complain they’re short-staffed. No one says, "Well yeah, you know what, this job is so easy. In fact, they probably should let me go. There's way too many people."
11. Seeking attorney’s fees means you're going to have to win to really win.
12. Consider whether you are boxing defense counsel in. “High demands make it like I can't lose.”
3.Know all potential causes of damages related to the wound, like a Foley catheter or UTI, and each surgical procedure like a flap or a rectal pouch. Count the number and types of interventions.
4. There’s shock value in graphic descriptions. “If there's gross junk in it, like dead skin,” say so.
5. A great lay witness may say, “When I walked in I could just smell it rotting and it was gross. It was like a dead animal in there.” But, caution. Someone saying they never, ever saw staff do anything will be easily impeached.
6. The plan care coordinator (MDS) may be deposed about the Medicare form submitted. “If I can get them submitting false information on that form, the only real excuse is carelessness.”
7. “I like it even better if a caregiver is unfamiliar with or doesn't know the standard of care.”
8. Big medical bills make settlement easier. If you've got a nasty pressure sore, good pictures, and horror stories about pain, grimacing and bad smells, low bills may anchor downwards.
9. “I want my experts to bill a lot because I want them to prepare a lot. I'll have a nurse for nursing deviations, and I'll have a doctor for causation and to combat the defense 99.9% of the time that it was unavoidable because the person was sick or immobile or noncompliant.” Nutritionists, dieticians, billing and staffing experts may also be used.
10. “With an older adult surviving child, it’s about how mom died. Seeing how she died and knowing that you put her in a place you trusted to care for her and that she raised you and she sacrificed and she had a right to live the last six months of her life. We feel this grief and sorrow because we weren't able to give her the peaceful end that she deserved.”
11. “I'm usually not going to take a case when the defense can prove unavoidability.” For example, where the facility has done everything to prevent it, but this person has stage four terminal metastatic cancer and is on chemo and radiation and steroids and their skin is breaking down from the inside out, and it's not a bedsore, it's just the result of other issues.
Laura Lally:
1. Plaintiff’s counsel should “contact me early before I spend a bunch of money on defense costs. If I ask for your bills or your Medicare lien, subsequent records, or death certificate and you refuse, I'm not able to evaluate your case and give you money, and yes, I would prefer to resolve it early.”
2. “I hate when a place is caught flat-footed because the Department of Public Health comes in a year and a half after discharge, but the chart isn't all in one organized place, so they don't give the wound care records because they weren’t part of the regular chart.”
3. “Defense counsel needs to review meticulously to see when the sore developed, what procedures were done. Did they have a hip replacement on their left hip and were in surgery on their right hip for a long time and a wound develops a few days later?”
4. “No alterations in the records!” If those records have been requested, you can't innocently change the records. On the other hand, don't pretend like a check mark that goes into two boxes is an alteration.
5. Nursing homes have huge turnover. We have foreign-born people afraid of the process, who've never been to court, who think they're going to be deported, who think they're going to lose their license.
“Often, it's dramatically upset people who leave on poor terms. Make friends with the staff, and say, ‘If you're ever contacted by anyone, you are going to have representation through this facility at no cost to you. Please contact me.’ Make it clear, no matter what terms you leave this community on, we will stand by you and we will provide you representation. Don't think [plaintiff’s counsel] is your friend if you get a subpoena. We will come and represent you.”
6. Document refusal of care. "’Well, the resident refused it on a Saturday.’ That's fine, residents have a right to refuse. What did you do about it? Did you tell the doctor? Did you tell the family? Did you try and convince their resident? I have residents who say, ‘I'm 85 years old. I want to be able to sit up in my wheelchair even if it is causing pressure to my backside.’ Your clients will think that's a get out-of-jail-free card. It's not.
“You have to note you've educated the plaintiff, and you've talked to the family more than one notation in a nine-month chart.”
7. “I want my expert doctor to be at the top of their field to get the medicine and the causation precisely. I want the nurse to be relatable and able to paint a picture of what it's like to be a nurse and what's required at a nursing home. It isn't one-to-one care.”
8. “I like healing, because it's hard to argue, ‘Well they were horrible nurses and then one day they woke up and became good nurses.’”
9. “I like diagnoses that would account for the wound, like diabetes, significant heart disease, a resident who isn't eating but has said they don't want a feeding tube or their family said they don't want a feeding tube. Some families say, ‘I don't want this, but I also want my mother to not have any skin breakdowns.’”
10. Of course, nurses complain they’re short-staffed. No one says, "Well yeah, you know what, this job is so easy. In fact, they probably should let me go. There's way too many people."
11. Seeking attorney’s fees means you're going to have to win to really win.
12. Consider whether you are boxing defense counsel in. “High demands make it like I can't lose.”