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Best Practices for Nursing Home Neglect and Abuse Cases

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Best Practices for Nursing Home Neglect and Abuse Cases

Nursing home abuse and neglect cases can be difficult and confusing to manage. In this course, Michael Brusca will guide you through the process of nursing home abuse and neglect litigation, including choosing the proper claims, procuring discovery, developing deposition strategies, and obtaining appropriate experts.

Transcript

Hi and thanks for joining me today. My name is Mike Brusca. I'm a partner at Davis and Brusca. I practice in primarily New Jersey, also sometimes over in Pennsylvania. I am a nursing home abuse and neglect attorney. It's all I've done since I came out of the JAG Corps back in 2009, and it's the almost sole focus of my law firm. This year I chair the National Group for the American Association for Justice, and I'm involved in the New Jersey Association for Justice's Nursing Home Committee. This is my contact information on here. I'm going to go through a lot of information today. And if you're finding yourself with questions, I'm encouraging you to call me. You can send me an email if you wish, but I hate email. I get too much email. You probably get too much email. And so I much prefer a phone call. So if you have questions, comments, concerns or anything along that line, just give me a call. Look, if you're going to do this work, I want you to do it well. And if there's something I can do to help you out, I'm happy to do it. So certainly don't hesitate to give me a call. And today's topic we're going to talk about is best practices for nursing home neglect and abuse cases. And here's a roadmap of what we're going to talk about. And I should say in advance, there's a lot of people that are very good attorneys that do this. Some people I know from especially within the American Association for Justice's Nursing Home Litigation Group, which, by the way, if you're doing this, I would highly encourage you to join. It's $150 and you get access to an amazing listserv and many, many amazing attorneys that practice in this field. But it's not my job to tell anyone how to practice law. Everyone has their own style, the things they like to do. I'm here to try to give an overview and have things in here for people that are brand new to the work. And there's things in here that are a little more advanced if you've been doing the work. So I try to get something in here for everyone. And here's the roadmap of what we're going to talk about. We're going to talk about what we use that word nursing home. What are we talking about? Right. And then what are these cases about, really? We're going to discuss Pre-suit investigation, discovery, anticipating defenses and the experts that you're generally going to need to get your case in front of a jury. So let's start out. What is a nursing home? Because this is an interesting category, I would say, before I started doing this. If someone used the phrase nursing home to me. I was thinking some like really large Victorian house with a, you know, nurses kind of pushing around old folks in bathrobes and wheelchairs. Right. Um, I will tell you that nowadays the acuity levels, that is the level of assistance that people going into nursing homes need is, is very high in some instances. Uh, there are licenses in many states for ventilator beds. That is, a person is on a vent in a nursing home, very high acuity residents in nursing homes, especially since a lot of people are going to go there for post-surgical rehab or deconditioning from an infection or something along those lines so the acuity levels can be quite high. Um, so it wasn't what I thought it was when I got started. Now, generally speaking, what is a nursing home is going to be defined by regulation. They're going to have a license that they hang on their wall. There will be an agency in your state that issues that license and there's a yearly application with a fee. And typically you can get that through some kind of open records request or Freedom of Information Act request. These are generally public knowledge, and so that will usually define what falls into this category. Of course, almost universally, nursing homes are going to be paid primarily through Medicaid, but also Medicare. And because of that, they're going to have a schedule of regulations that are set forth by the Centers for Medicare and Medicaid Services or CMS. And they're going to be required to follow very specific regulations promulgated by CMS. And so if CMS says they're a nursing home, then they're a nursing home. If they're getting paid that way and they're following these regulations, then they're nursing home now. This is kind of a continuum of care. Give you an idea of where nursing homes fall on this continuum. So. At the top. You have hospitals, right? These are for people who have very acute issues and are prepared to spend the night there and not at the Marriott. Okay. You're spending the night in a hospital. Something problematic is happening to you. Now, I should say that I don't know that all states have these designations. These are some general ones I see in most places. But your state may have fewer or more designations or licenses, but this is a pretty good idea of what the spectrum of care looks like. So below the hospitals, you have long term acute care hospitals. These are for people who are really sick but pretty stable. That is, they may require some kind of intubation or something along those lines, and they're going to go to what's called a TAC or long term acute care hospital. And these are people that don't require the ICU, but they're they're dependent probably on a lot of similar issues that you may go into the telemetry unit in a hospital, which is a step down from the ICU, but you're stable, but very closely monitored. And if you're going to be required due to your condition to be in telemetry for quite some time, they may want to shift to an Ltac. And below that, a rehabilitation hospital. Candidly, these are very close to nursing homes. Generally speaking, these seem to be for very short term rehab, maybe five days, something like that. Some are longer, but that's kind of kind of the threshold for them as far as I've seen. It also seems to be where people are pretty much. The plan is to for sure send them home. You will find that a lot of admissions to nursing homes start out as rehab and then shift to long term care. And I don't know if this is a call by social workers and hospitals or what have you, but rehab hospitals and nursing homes are very, very closely related. There's very few differences other than the regulations governing them. But it seems to me that rehab hospitals typically will take people that require a shorter duration. And now we have nursing homes. They're also called skilled nursing facilities or SNFs. And as I said earlier, these are either going to be rehabs or they're going to be for long term care. You're going to live there. And now below nursing homes, you're going to find assisted living. Assisted living can be kind of like the Wild West. There's no overarching federal regulations for assisted living. It can mean anything from minor medical monitoring, maybe none. People generally cognitively intact get some help with, like cleaning meal preparation, maybe their medications, maybe not up to people who require nursing home level of care. So it's a very broad swath of the continuum of care that falls into assisted living. Have whole other lectures on assisted living. We're not going to talk about that today. I do have many cases with assisted living facilities, but that's not what we're here for today. And below that is independent living. This is generally senior apartment housing, something along those lines where there may be some transportation assistance to the grocery store or things of that nature, common areas where people can spend time with each other. But generally speaking, there's no health care and independent living. So that's kind of the continuum of care from hospitals down to independent living. Okay. Like I said, we're dealing with nursing homes. These are also called. Skilled nursing facilities or rehabs, long term care facilities or subacute facilities. Subacute facility is a marketing term, and that basically tells you that what they really want are rehab patients. Rehab patients are almost universally paid for by Medicare and private insurance. So these types of people can be very lucrative to the facility, although there's time limits on how long they can be in there for that kind of rehab. Long term care, if you are there for for the duration of your life, is generally going to be paid by private pay, But most are Medicaid. So subacute facility is kind of telling the hospitals who they're marketing for, but that is a marketing term. That's not a separate distinction, at least not in my state. Okay. So that's kind of what nursing homes are. What are these cases about? There's different ways that you can frame and direct your case and have some suggestions about that. So. Every single defense brief I've ever read, I think in the last 13, 14 years, whatever it is, says pretty much the same thing. This is a complex medical negligence case. Me just point out it's not I am not doing a complex medical negligence case, but I'll get to that in a minute. Medical malpractice, to my mind, is a completely different discipline. Not that they can't overlap at times, but generally speaking, I am not doing medical malpractice cases. I don't consider myself a medical malpractice attorney. I sue nursing homes that hurt and kill the elderly. I do not do medical malpractice unless it's ancillary to my case, which it is sometimes. I will admit that. But that is not the general thrust of my case. Medical malpractice is about a one bad day in someone's life, a surgery that went awry, a misdiagnosis. They didn't read the the scans. Right. Whatever it happens to be, you're going to have doctor defendants. Right. It is heavily focused on the medicine. And generally speaking, the owner, your client, the better because. Look, let's be clear. In almost all types of cases, you can't give your client what they really want. You can't go back in the past. We can't make people whole physically. All we can do is talk about money. And generally speaking, younger people are better candidates for a medical malpractice case because they earn money, whereas senior citizens generally do not. And so that is a factor. That is a practical damage factor that one must consider because they're very expensive to do. And so at the end of the day, it doesn't make sense for your client to be dragged through a very unpleasant process to get very little, uh, um, compensation when they're done because it's not worth their time and effort, right? So generally speaking, the younger your client, the better. And. You know, quality of life damages before and after. And look, let's be clear. People like doctors, right? I mean, look, the guy from the Love Boat, George Clooney, in his younger days, and who can forget when Luke and Laura got married on General Hospital? It's kind of like when people from my parents generation all said they knew right where they were with a lunar landing was or when JFK was killed. It's like, oh, and of course, when Luke and Laura got married on General Hospital, I knew exactly where I was. Okay, So, you know, these guys don't make the and gals don't make the greatest defendants, but nursing home is different. All right? I'm not prosecuting a medical negligence case. I'm prosecuting a corporate malfeasance case. I sue the companies, not the people individually. Very rarely do I sue individual nurses outside of a director of nursing and an administrator of a facility. I'm suing the corporations because the corporations that dictate budget, it is the corporations that dictate staffing levels and it's corporations that dictate policies and procedures and also ignore complaints of staff. To be clear, working in nursing home is can be a very difficult job and very unpleasant at times, and corporations are generally not responsive to those kinds of complaints. I'm going to focus on regulatory violations. I'm going to focus on what happens to the money. As I indicated earlier, they're going to get paid primarily through Medicaid, but also through Medicare. And you're going to see and I'm going to show you that what happens to that money is you would think as a layperson, oh, I get this money from Medicaid, so I'm going to direct it towards care and I'm going to have good staffing levels so I can provide the best care as possible for these people. Now, listen, I am a Gen-Xer, and as a rule, we are very skeptical of large corporations. You know what? That's for good reason, because that's not what happens in these facilities, especially the ones that are owned by chain corporations. What they do is they get this money and they siphon it out in, quote, management, close quote, fees, administrative fees and rent that they pay to themselves and negotiate contracts for all these things by themselves with themselves. So at the end of the day, that's really what's happening with the money. Now, unfortunately, you can't have a place operating too far in the red. So in order to make up for that money, they understaffed the facility. I deal with basic medicine. The bedsore is about a failure to consistently offload pressure. Full stop. Right. If you're going to make it about everything else. But that's really what it's about. And we're going to trigger outrage, right? Generally speaking, I find and I'm not even a cynic, but people really don't care that much about the elderly until you put it in front of them. And when you do one of these cases, you put it in front of them. So generally speaking, I'm not interested in George Clooney. I'm interested in Jeffrey Skilling. These people are more like that than they are George Clooney. Right, Right. So. Now in order to do this. I'm not going to really focus on the what happened. I'm really focused on the why it happened. Right. Like I said, this is basic medicine. So this is an image of the Fukushima nuclear plant in Japan. I was stationed there in Japan and I lived not too far away from this, but had left a few years prior to this, that horrendous tsunami. So it's like, well, what happened? Right. And this is a difference Like what happened was, well, there was a giant earthquake and it caused some damage in these reactors, which triggered fires and almost led to a meltdown. That's what happened. I'm interested in why it happened. Well, why did that happen? Well, it turned out and this is very unlike Japanese, there was a lot of shortcuts and a lot of regulations weren't being filed, followed. And so as a result of that, this terrible catastrophe was now possible. And you can see there's a difference between the two, right? It's not about the earthquake or any of that other stuff. This is about what they did and what they knew could happen as a result. So when do these cases I'm focusing on the why, not the what? So in terms of a nursing home case, if you had a pressure injury or bedsore or pressure ulcer, same thing. What happened? Well, the person wasn't kept clean and dry. They didn't offload pressure every two hours and every one hour in a chair. And they got inadequate nutrition. They got a wound. Right. And it's very simple, basic medicine, which was one of the reasons why these cases are so dangerous, because the wound itself is evidence of the negligence. And the medicine isn't that complex to convey to the average IQ. Right. So basically, that's what happened. But the more important question is why did that happen? How is it that these vulnerable people were neglected? Right. Because they were understaffed. And by the way, when they're understaffed, they can't feed clean or turn them. And they know this, by the way, there's ample documentation about staffing being equal to care, specific to pressure injuries and the facilities and the corporations all know it. They fail to assess and care plan. Oh, and why was that? Because they're using lpns or licensed practical nurses or in other states lvns licensed vocational nurses instead of registered nurses. Why would you do that? Because in most states, that's illegal. Because. Rnz costs more money and there's less of them and no one in the facility. By that I mean residents and family know the difference. They just see. Nurse Right. And then instead of the Medicaid and Medicare going to hire better staff and more staff, instead it's getting siphoned out in management to management companies. And I sometimes think I should have gone to school for nursing home management because it is very, very lucrative. Okay. So let's talk about the Pre-suit investigation. Right. What am I going to look at beforehand? Because there's a universe of information out there and either me or my staff is going to go get it and we're going to take a look and see what it says. Now, the first and most important thing is getting the hospital chart and the nursing home chart. Now, almost universally, no one goes from home to a nursing home, right? There's almost always a hospitalization that leads to it. And it is very important to get that chart right now. Hospital charts are almost all electronic now. When I started, that wasn't the case, but now they're almost all electronic and they were early adopters of what they call EMR or electronic medical records. It was good that they were early adopters of the EMR. But the bad thing is there's generally not a lot of universality in the EMR. So each hospital chart is going to be slightly different. Now, under HIPAA, right, the Health Information Portability and Accountability Act, they have 30 days to get you the chart or they have to send you a letter saying why you don't have it within 30 days. I don't know about that. I've never gotten that letter and I've been doing this a long time. But that is the rule. I like to give them the rules when I when I make the requests. Like I said, they can be kind of difficult to read, but a lot of hospitals nowadays are moving to patient portals, which make it very, very easy to get the medical records. This is really a good thing. I mean, in general, it's a good thing because family members that have access can go to this portal, they can download the records, they can actually find out what the hospital is saying about their patient in the hospital. And it can be very easy to get it in that respect. There's another law called high tech. I would tell you that you should request your medical records, have your clients request your medical, their medical records under high tech, because then they can only charge you the fees that are attendant to putting electronic medical records on a disk in a in some brilliant decisions with regulatory bodies and case law. This does not apply to attorneys or that is the interpretation. So I usually have my clients do their own high tech requests and then we monitor that for them and only get involved at the facilities blowing them off the hospitals, blowing them off. Now the usually get a full chart. I generally don't get partial charts from hospitals. Usually when they produce the records, they produce the whole records. I can also say if you're having a problem getting hospital records, they have a legal department. They do not want complaints to the Department of Health about them. And so if their record provider is giving you ignoring your requests, if you call them, a lot of times they can be very helpful in getting you the chart. Now the record, if your person went into the emergency department in many places, that is a separate chart which requires a separate request. So if you do have an admission before admission to the hospital, you definitely want to be sure you request the emergency department records as well. Oftentimes, films are separate. So if there was a fall with a fracture, a lot of times you're going to have to ask for the film separately. And same with wound photos for hospital records. I asked for them separately, separately, and they usually come attached to the record. If there was any kind of debridement or process where they cleaned the wound out or do a surgical procedure on it, they're generally going to be before and after photos and you want to be sure you get them. Now the nursing home chart. The nursing home chart is generally uniform no matter where you are. They're pretty much the same. And by anywhere, I mean anywhere in the United States, whether you're in New Jersey, Oklahoma, Texas, Arkansas, California, it's pretty much going to look the same. Now, there are, as I said earlier, federal regulations which govern nursing homes. It's 42 CFR 43, but they are split up into subsections. They are called tags. Okay. If you start talking about code sections to directors of nursing and administrators and staff, they're going to have no idea what you're talking about. If you talk in terms of tags and exactly what you're talking about right under the tags, the facility has two working days to produce its chart to you. Now, I will also say nursing homes are unlike hospitals often produce incomplete charts. And so I have to go through them and be sure that everything is in there. It should include the minimum data set, which is a very important document I'm going to talk about later. But that one for sure gets left out all the time and always have to follow up and say, Oh, by the way, I need the MDs too. Sometimes they're electric or electronic, sometimes are handwritten. That's a fact. And oftentimes there's very few programs they use nowadays. One of the big ones is Point Click Care, which is a Canadian company, and a lot of them are using that right now. So they're very easy to read actually, when you get them. And they're going to include nurse and physician notes, therapy notes, care plans, Mars, which is medication administration record, that is when they give a medication, they have to indicate that they gave it on at the correct time and initial that or Tara's treatment administration record. Same idea, but for treatments. You're going to see assessments in there, in particular transfer forms, things of that nature. But they are going to be the same all the time. Right. And once you've looked at one, you should know exactly what should be in there now. So that's the first thing you want to get to the charts, right? And you need a complete chart. You want to see the before hospitalization, the after hospitalization. You will often find that conditions are want to put this. So try to be generous here, but understated. How's that for a phrase? I had one now I just looked at. They said my client had a very tiny little wound on their back and when they went to the hospital, they said it was a five by four foul smelling stage four pressure injury with feces inside of it at that moment. Okay. And the hospital was going to take a much clearer and more concise story about what the person's condition is usually. Okay. So now the other universe of information, like, I can't understand what the family tells you right now. I have read in my career thousands and thousands of nursing home charts, and I've never read a nurse note that says, Oh man, we really screwed this one up, or Oh man, too bad we had no one in here today to get anything done right. They're not going to write that stuff down. But the family will tell you about it. They are the most important information when it comes to what was going on in that facility. Now, to be clear, that's a challenge during Covid, because they weren't allowed in, right? They were not allowed in. And so what they can tell you maybe. Relegated to FaceTime calls or calls to the staff. But at the end of the day, what they have to say in particular about understaffing is very, very important. They found cold food in mom's room. Mom is in her nightgown at 4:00 in the afternoon when I push the call bell. It takes 15 minutes or more before anybody comes. I actually had a note one time which said the son wanted to have an appointment with maintenance because every time he push the call bell, no one came, so it must not be working. That was actually documented. So what they tell you is very important, but you have the federal regulations, as I mentioned earlier, they come in a binder, you can get them, you can download it from the CMS website. It's called the State Operations Manual or Som. You can also get it through an organization called the Healthcare Association. American Healthcare Association has a book they put it in or binder format you're going to do in these cases and you do not have this document. You need this document like as soon as you get off this. Dlr, get the document. Okay. You get state regulations, the surveys. Okay. Every nursing home in in America is going to get inspected at least once a year by a state Department of Health. That is a requirement of CMS. And there is a form filled out called a 2005 67, and they are public knowledge. There is some diversity as to whether or not they're going to be admissible before or after. I always think at a minimum for impeachment. But in some states they are no go. But absolutely you want to collect those in advance. You can get them online. The licensure application, as I discussed earlier, the payroll based journal Daily Staffing. Now the facilities have to report the staffing patterns every day with the census and split it between contractors and in-house personnel. It is called PBJ. You can literally Google CMS, PBJ data. They upload this data quarterly and you can go and download it and get the daily staffing patterns. Now, I will tell you when you do this right now, you go to the website. Do not try to click on the links at the top. You got to roll down to the links at the bottom because you need special software to read the ones at the top. But down at the bottom they're just Excel spreadsheets. What I do is I put a filter on for my facilities Medicare number, right? And then I download or I export that to a CSV file and then I just download the spreadsheet, the cost reports. These are super important. They file these every year with CMS. Now, I will tell you candidly, no one reads these things until you read them and they are an ally of what they did with the money. They got their long documents, but when they do business with themselves, they have to disclose that on this cost report. And there is a Section eight one where they disclose this and how much they paid these related entities. I cannot stress the importance of this document because it's going to tell you exactly what they're doing and what their priorities are. You can get them through FOIA requests, but CMS. It's unpredictable, I'll put it that way. About how long it takes. Now, I was a FOIA officer in the military, and I always met my 90 day deadline. Hamas does not they don't have the same sense of urgency I had as a first lieutenant. So at any rate, I can tell you can get these also from a website called SNF data. They have all cost reports for all periods of time. You can get them from them and certainly it's publicly available. So it's perfectly appropriate if you're in litigation right now with the case to go ask the defendant for them. And when they make privilege and other nonsensical arguments, you can point out that you can procure them for FOIA requests. But it's just taking too much time from CMS. It's very hard to withhold a document that's publicly available. Okay. Medicare.gov runs a five star rating. This is for the public. It has all nursing homes that they accept that kind of money, which is pretty much all nursing homes. You put in your zip code and you'll get all the nursing homes in a 25 mile radius. More importantly, you can put in specific nursing homes like the one you're interested in, and you can go find how this facility has a star rating. So there's an overarching star rating and three subcategories, one of which is staffing. You can get this data archived at the data archives that is below that. So if you're looking for their star rating from a time period, that's before the one that's up on the current Nursing Home Compare website, you can get it at the data archives. I literally googled nursing home data archives. You will. They are broken down to year and month, so you can go get it down to the month. And of course, any kind of state staffing reports like, for example, New Jersey, we have quarterly staffing reports which are public information which I pull down off the Internet. So there's a lot of information that's floating around out there. Right. And that's before you ever file the lawsuit. And I'm just going to say this. I would far rather get information on my own than have to go through a defense firm to get it. I will tell you, I get frivolous objections all the time. Then I got to file motions on all of that is a time suck. I'd rather just go get it myself and I send it to the defendant and amend interrogatories with it. Um, you know, you want to believe people will do the right thing, but oftentimes they do not. Okay, so. Was going to discovery. So the first thing I'm going to talk about is. Depositions. Now, I've taught whole seminars on depositions and everyone's got their own style. But what is a true fact? If you do these cases, you have tremendous advantages. Okay. When you when you go into depositions. I love this little slide. That's the The Martian from War of the Worlds. Uh, right. What a great radio program. But at any rate. You know, as the place guy, I get to pick my cases, right? Defense attorney You don't get to pick their case. They get assigned to buy insurance. Carrier I get to pick my cases. I have the medical records all in advance. I have expert reports in advance, and I have all the data in advance before I ever file a lawsuit. I already know they screwed up. Poor defense lawyers got a stack of medical records, right? This is a tremendous advantage when I go into depositions. Right. And so I have the ability to a frame my case. Right. I want this non-medical negligence case, by the way, not medical malpractice case, by the way. Right. I get to map out the discovery I'm going to want before I even file the lawsuit. And I can go into my depositions with a plan. Right. There's no random questions in any of my. Depositions. Now, people take depositions for various reasons. For me, I am not a competitive person. I do not like fighting with people. My Myers-Briggs test calls me the harmonizer. So I'm going to harmonize in my depositions. I'm going to confirm trial statements for opening. I'm assuming that my case will go to trial, even though statistically it will not. And when I go up there, I never want to say to a jury, you will hear from my expert. They will say X, you will hear from my family. They will say Y. I want to say you will hear from their director of nursing who says A, B and C and their administrator says D and F, Right. I want to put my case on through their people. And so in order to do that, I need them to say specific things for my opening, which, by the way, jurors will wind up voting 80% consistent with their thoughts after opening statements. So I want to lay out my entire persuasive case in my opening with zero argument. And that's going to require their statements locked in. I'm also going to undermine the future defense experts with depositions. At the end of the day, the defense case is going to be like a sausage, right? They dump all this stuff transcripts, medical records, blah, blah, blah. They crank it out and here comes the sausage. And with depositions and language and depositions, I'm going to dump screws, nails, broken glass into that sausage maker that their experts are going to have to contend with. Now, usually what they do is they wind up just not mentioning these very difficult facts for them in their expert reports and cases typically settle because what are they going to say? They're going to be confronted with the question, who's right? You were the director of nursing, which I love asking that. I'm also going to lay out my case in depositions for the defense attorney and explain to them, you may want to settle this and maybe learn something new, especially with the corporate issues, how people are paid, who's involved with those companies? I may get something new. All right. So when we talk about the depositions, what are the real important key ones? Well, there's the director of nursing or the Don. There's a nursing home administrator and I put in the minimum data set coordinator because I want to talk about the importance of the MDS, how you can use the MDS and importantly the resident Assessment instrument manual or RA manual, and you can definitely do it with the minimum data set coordinator as a person whose sole function is to fill out this form. I will say though, that you can also generally confront a director of nursing with this stuff because. They're going to know what the MDs is for sure. They're going to know what the manual is for sure. And they are in charge of the nursing department. So a lot of times you can cover that data with the directors of nursing as well. Now, I need to take a little break here, a little deviation and talk about the corporate designee. Now, this can be a very powerful deposition depending on your case. Now, this is under the federal rules, 36. They're also the person most knowledgeable in other jurisdictions, but they're generally going to have a specific rule dealing with the corporate designee. The way the corporate designee works is you outline with a notice what you want them. That is them, I should say the corporation to to designate a person to speak on a specific issue. And you tell them what issues they need to be prepared to discuss. And the defendant picks through the corporate designee is not me. I've had them say this sometimes, but they don't understand what that is. They'll be like, Well, who do you want? I'm like, It's not up to me. It's up to you. I'm just telling I once telling you I need someone from your corporation to be prepared to discuss these topics. And to be clear, that notice is not a shield for the defendant to get sometimes get these ridiculous. Objections about relevance. That's not the point of it. The point of it is you're supposed to prepare them on these topics, okay? And unless this is a shielded by protective order, I'm going to need them to ask these questions and then they have a duty to prepare the witness. So here's a question you're really not supposed to hear in a corporate designee deposition. Don't know. Okay. Well, I sent you the notice. I specifically asked them, Are you prepared to discuss these topics? And if they say no, I look at the defense lawyer and I'm like, well, well, who is or who is in the best position to discuss that? And I wanted to propose that person. So this can be a very powerful deposition. You can cover all kinds of things with the corporate designee, and I frequently do, but I don't because it's so variable. I don't have them separated out as a key deposition. Okay. Let's talk about the Don. Now, the Don is kind of like the Swiss Army knife of your case, like they are the top clinical person in the building. Okay. They manage the nursing department and they conduct chart audits. Well, the chart audit is is where they pull random charts and review them for thoroughness because they do these things and they will tell you they do these things in the beginning of a deposition. Then it is fair game. Any question whether it be the facility, corporate liaisons, staffing levels, the medicine, the standard of care, We're going to talk about all those things. But they are really the Swiss Army knife of my cases because I'm going it will be my longest deposition and I cover everything with the director of nursing. All right. Now, I love this picture. I tell people I'm strangely attracted to her. I don't know what that says about me, but at any rate. So, you know, I'll always cover the basics like the facility, you know. Tell me about this facility. How is it laid out, the relevant medicine? And like I said, we're talking falls, bedsores, brain bleeds. You know, this is really basic stuff that we're going to cover with them, infections, things like that. General applicable nursing standards, like what is it and how the nursing department works and who's in the nursing department and the scope of their job. Because like I said, I'm going to open and I'm going to quote the director of nursing. They will tell you about the facility. They will tell you about this. They will tell you about that. Right. We're going to talk about federal and state regulations with them and the survey process that inspection survey discussed earlier. Right. Because oftentimes when you get a citation or deficiency from the state, you have to file a plan of correction. Now, this is a written document saying, look, here's how we're fixing this problem moving forward. I've got an objection that is hearsay. Now, in New Jersey, we have case law that says real time observation by state workers are not hearsay. But you may not have that in your state, but they're definitely a declaration against interest because you get deficiencies that are public knowledge, public information, and you can get a fine from it. That also, I would say, gives it the indicia of reliability, that old catch all for hearsay. So going through that process and understanding that they could have appealed it and chose to submit a plan of correction would be important for those future objections. The standard of care. Right. We turn because, you know, listen, lawyers can be a little egocentric, just like doctors, right? The standard of care is not a legal term. It's a medical term. It's a medical standard. And their staff have to meet it every shift for every day in that building. And I ask him, you've heard about it in nursing school, right? Yeah, of course I've heard of it. Well, whose job is it? To be sure, the staff remains standard care. They better say me all right. Because if you get an answer like, Well, it's everybody's job, I'm like, Well, everybody's job is nobody's job. Try making it everybody's job to clean out the fridge in your office and see how that works out. Okay. I also get the chain of command out of the director of nursing. Right? Because we all have a boss now. The director of nursing is typically and technically the number two in the building. That is the administrator is kind of the top of the food chain or the chain of command, as we would call it, in the service. And the Don is below them. But normally a director of nursing also answers to a corporate nurse or a regional nurse or a regional director of operations. There's a million titles, but there is someone else they typically go to first when they have clinical issues because administrators often have no health care background. But they're also going to have sometimes reporting requirements or meetings with them about other things. And so I want to know about that. I also want to know about the officer involvement. Now, every nursing home is required to have what is called a governing body. And you can look up the tag on governing bodies. And I will tell you right now that in many, many nursing homes, in fact, I would go so far as to say most nursing homes, the Don has no idea who the governing body is. Now, this is a problem because the governing body is supposed to be a real integral position and do a lot of important things in the nursing home. So I always ask, well, do you even know who this officer is? Do you know what they do? And they will say no almost all the time. Additionally, especially in corporate chains, there are going to be regional meetings with other directors of nursing. There is zero privilege to these meetings and the things they talk about in these meetings, which will have an agenda and meeting minutes are what they're supposed to focus on, right? So let's say they're supposed to be a less formal initiative. That'd be great, right? Less falls in the facility. But oftentimes it's like marketing stuff and, you know, coding things, which we'll talk about why that's relevant later on. But these meetings are not privileged, right? And they all have them. A lot of times they're doing them from Zoom even before the pandemic. Now, importantly, I will go through this staffing with the director of nursing, because these are the hands on caregivers. So we're going to talk about the importance of staffing I have. Several memorandum by CMS talking about the importance of staffing literally marked them as exhibits. Read them and ask them if they agree. Okay. Because there are direct links between the care and everybody knows it. There's study after study after study. I collect these studies like seashells. Okay? There's tons of them out there. The turnover rate, which is now available on the CMS Nursing Home compare website more recently, but the turnover numbers in their facility and why it's important. Right. In my opening, the director of nursing will tell you about the importance of reducing turnover. But in this case, the turnover was 80% right. The morale. What do they do to foster good morale? I'm going to tell you what you're going to hear. I manage by walking around. I have an open door policy. We have an employee of the month. We do barbecues on holidays. Anything else? That's about it. You're going to hear that in pretty much every director of nursing deposition, despite the importance of morale. Now, keep in mind, too, a lot of places will also do employee satisfaction surveys, which you can make requests for. Because what could be the privilege there? There isn't one. And especially when they've told you how important that stuff is, Right. If they use contractors or agency is going to be very important because they are not as good, they will tell you they're not as good. Also, the differences between Lpns and RNs that we discussed earlier and the equipment and corporate involvement and what role did they have in the budgeting process, which I can assure you was almost zero. Now, I want to take a second. And discuss understaffing. I'm talking about the nursing department. All right? I'm not talking about maintenance or housekeeping or anything like that. And we're talking about the Don. And then you have the RN's Lpn's and CNA's below them and perhaps an assistant director of nursing. Now, all those roles have a scope of practice, the smallest of which is a CNA. Now, as you can see from this little graph that I did myself, thank you, think you did a pretty good job with this. But anyway, RN's have the biggest scope of practice and everyone falls within their ambit. Lpns are more like CNAs than RN's. They can collect data and that's about it. Although and generally they cannot do assessments and generally they cannot care plan. And I will tell you that they do it all the time in nursing homes. So under staffing really means not the right numbers, that is bodies in the building, but also not the right quality. I don't mean like are there a good person I'm talking about whether they have the right credentials. Right. Do you have a lot of contractors? Do you have high turnover? Are using untrained or uncertified CNAs, which they are allowed to do for a brief period of time. I know some facilities will bring in a class of uncertified aides for their, quote, training, close quote, and then fire them and bring on new ones. Yeah, that's a thing that happens. Okay. Um. This is a graph from a study. It was the gold standard. Incredibly, they decided to walk away from the study in 2017, along with several other changes which were very disturbing within the nursing home industry. Not sure why they did any of that anyway. What you really want to see is what I call the staffing smiley face. I have trademarked this, so don't put this on your own slides. But anyway, what I want to see is high and high CNAs because CNAs are the frontline caregivers. Low Lpns. Right. Look how everything works out that way. But then usually you see the staffing frowny face, right? High Lpns, low. Rn's low CNAs. Bad outcomes. Additionally, with the Don, I'm going through my entire client's chart. I'm going through all the documentation, false charting. Gaps in documentation, I will ask them. That is a deviation of the standard of care, is it not? And I will ask that question four times until I get the answer. Yes. It's a deviation of standard of care. Right. And I'm going to lay out almost all my trial documents with the director of nursing, and that is going to be who I'm going to put my clinical case through. Right now. Let's talk about the administrator, because this handsome guy or pretty woman is going to be an important part because they are ultimately responsible for the management of the facility in accordance with the tags. Posed to be in charge. You're looking to get Michael Scott in there, right? Oh, but will you? Now, these people can testify to their chain of command because they have one, too. And what is the role of corporate? What are these management companies do? And did you even know you were paying rent? That cost report that I discussed earlier, the form 2540, it lists that. Did you know you were paying $1.4 million in rent now in New Jersey? We have additional state regulations that make administrators financially responsible for the financial running of the facility as well. And I will tell you that they just look at their lawyer and they're like, I didn't even know were paying rent. I don't know what that money is for. I don't know what that management company does. I don't know what any of that stuff is. Right. That's really what's going on. So you're more likely to get this guy right now If you watched The Office, which I love this show. And anyway, Michael Scott is the boss now. This is his kind of toady, second in command, authoritarian loving guy. And he always wants to tell people he is the assistant regional manager, at which point people point out that he is the assistant to the regional manager is very different. Those two letters. You are more likely to get Dwight Schrute than you are to get Michael Scott right and ask him these questions like Can you even sign a check? Right. Can you prove capital expenditures? Do you follow your plans with correction without guidance from corporate? Do you get insurance? Do you negotiate union contracts? You want to fire the director of nursing? Could you do that on their end? Like, Well, I don't have to discuss that with corporate. I'm like, I bet you would, because the reality is they have no budget. And in fact, oftentimes they have to prepare budget variance reports, which is when they go outside of their budget they've been given, they have to tell they have to tell the boss about it. Right. I will cover staffing with them as well, because ultimately, while they don't have a health care background, they are ultimately charged with running that facility. Okay. Now for me, I would just before I talk about this, I do want to go back to the administrator. They are going to they are going to cause real problems for the corporate entity because the corporate entity is either going to they're going to want to distance themselves from it. And in which case you're like, well, what are they getting paid all this money for? Or you're going to see an example of a company that's located in a different state that doesn't even know what they're doing in the facility, that's dictating their staffing patterns without knowing their residents or their or their staff. So that's primarily what I'm doing with the administrator now. The coordinator, this is an important one, right? So this is important a nurse, because they're the ones that will do reimbursement for Medicare and sometimes Medicaid, depending on your state. And so this is a very important person, right? They are nurses with purses and they do not want to go to jail because the minimum dataset is sworn and certified with a very explicit statement. At the end of it, it looks like this. It's going to be the most comprehensive assessment and it is dated in the upper right hand corner and it determines, like I said, reimbursement. It will also trigger what are called care assessment areas. Now, when the care assessment area is triggered because the MDS covers everything from falls to cognitive status to nutrition to dietary to incontinence to pressure injuries. It will trigger these areas called care assessment areas. And when that happens and you will see it in the first full minimum data set. They will call them the cars. They have to check off whether they make a care planning decision about it. And they are required to make a care planning decision about it. So if a person is at risk for pressure injuries and that is checked off, yes, that will flag a car. And they have to make a care plan decision about it. And wouldn't it be great if you could see that they didn't do that? Well, you can on the minimum data set, it used to be had to be done quarterly, although the rules are somewhat changing in that area. And there's a new MDs coming out, a new version of it, I think, this year. But this is the foundation of the care plan. Like I said, it covers everything you can imagine, right? And you will find discrepancies. Because the other thing that this document is for is when they do that five star rating system, one of those sub categories I talked about with staffing, well, another one is called quality measures. And these are things that conditions that may occur, which are indicators of the quality of care that that facility is delivering. And one of those is pressure injuries and falls with major injury. And a lot of times they do not code them on the MDS to boost their five star rating. And in New Jersey, if their quality measures are good, they can get an increase in their Medicaid funding. This is fraud. Okay? This is fraud when you see it. I don't know. Actually, there's a study floating around out there that when it was conducted and I don't have the details in front of me, but it found that I think it was like 57% of falls with major injury at the time of that study were not being reported to CMS. Guess what else does the quality measure falls with major injury? Yeah, that's right. It's that it is fraud. Okay. Now the minimum data set is governed by. What's called the resident Assessment Instrument Manual. They will call it the manual. They will know what you're talking about. This is a very useful document because it discusses each section of the minimum data set, why it's in there, what's required from the facility, if it's checked off, how to assess and how to code for that. It's updated every October, some delays with Covid. I think they're still working off the 2019 version, but it's not the version on here. It's a later one. You can get it for free at the CMS website, literally Google CMS manual and you will get the download. Now look, no one reads this thing. You know why? Because it's 1309 pages and has no pictures in it. Okay. I'm just telling you, relax, it's hot linked, okay? It's searchable and it follows the MDS, which are section letters A through Z, so it's very easy to go through and take you right to what you need. And here's an example, right? This is section which is functional abilities and goals, which I believe the section is going away and the new one. But at any rate, it tells you why is this in here, right? Or what are they doing? It's focused on prior function and mission performance discharge goals and discharge performance. Right. And how are they supposed to do and why is it in there, the item rationale and what are they supposed to assess for. Right. So it's very, very, very helpful. I literally like when I have wound ones, I literally print out the manual section on wounds and like whatever it is, the care planning for it or whatever it happens to be. I mark it as an exhibit. I read it and I ask them if they agree with it. Go ahead and disagree with the manual. They never disagree with it. It's not that dumb. Right? So between the administrator, director of nursing and the coordinator, other depositions. Right. There's a lot of facility workers in this case dependent. If you have falls. Right. There's going to be a lot more people involved with that if you have pressure injuries. You know, people aren't going to remember generally one specific shift or another shift. I don't know. You know. You got the charge floor and wound nurses, get your CNAs, your registered dietitian, the activities aide and therapists. And of course, you can go up the corporate chain, right? You really want to make people uncomfortable? Start noticing those depositions, right? Now the documents that you can get. So let's shift gears from depositions. Documents, right. There's the annual facility assessment, which is a done under regulatory requirement. It specifically addresses staffing. It's usually a standard form. There is no privilege attached to an annual facility assessment. Okay. You have incident reports. Incredibly, in my state, sometimes they find these privileged under a ridiculous state law, which was clear to me that our appellate division did not understand what the quality assurance plan was in a nursing home. But regardless, person falls. There's an incident report. It's going to list a bunch of data you can't get anywhere else in the chart. They use this for care planning purposes moving forward, and there will be witness statements that you will not find anywhere else in the chart because they're usually filled out by CNAs who do not document, but variance reports are discussed with the administrator. If they're going to go outside the budget, they've got to say why they're doing it and justify it. The budget emails. I think it can be helpful. They can be helpful. Casper and Pepper reports are reports that they get from CMS. There is no privilege that attaches to these things. Casper reports are for their various quality measures and how they're stacking up versus pepper, which is Acuity's and their facility more for fraud type cases. But they're floating around out there, the daily staff assignments. They're supposed to post this every day. How many people are working on this specific unit? Because the nursing homes are going to be split up into units which will not show up on other staffing data sources. Now, these have to be produced to the public on oral request. No privilege attaches to the daily staffing assignments. You could you could write you could call a nursing home right now and say, I want them and they're required to give them to you under the federal regulations. Of course, you got personnel files and care competency lists, care competency lists. Now they are required under the new staffing regulation or new staffing tag that their facility staff are required to be competent in a designated list of activities. And they can say what they are. So it'll be like wounds, fall prevention, that kind of thing. And when they are competent, that is, they have hands on training that will be put in a personnel file. But understanding what is that list, you can find that out from them. And no privilege attaches to the care competency list. Okay, so what are your defenses? They're going to be the same. Okay. And these are like Legos. You know, the they call it the old sick, dying, blah, blah. Oh, your person was old, sick. And I'm like, Yeah, well, they were in a nursing home, right? So that's we're all old, sick, dying in a nursing home or noncompliance. Right. Or unavoidable. And, you know, they'll snap in a little unavoidability a little sprinkle and some noncompliance. Ta da! Here's your report. Right. I've read a million of them. I could write on myself. Okay, These are dumpster defenses. It's garbage. Because at the end of the day, you know what happened in there. You just have to make them say it, okay? And they have to defend the indefensible. Right? A pressure injury is caused by a failure to offload pressure. That's why it's called a pressure injury. Ask the question, can we agree that the most important way to prevent a pressure injury is to offload pressure and get no to that question, which is stupid. But at any rate, these are dumpster defenses, right? And like I said, when we look at the sausage maker, we're going to force them to say things. So for defense, you can pull out the minimum data set. There is a section on prognosis. Does this person have less than six months of life to live? That is the question they ask and they never check off. Yes. You know why? Because then they can't bill for therapy. And if they do check, yes, there's other things that get triggered under the manual. It'll say, Have you discussed care, planning and end of life? Have you discussed hospice and palliative care? And you will see none of those things in your chart, right? So you can use the minimum data set and the manual to tank this defense. Okay. Non-compliance. It's on the minimum data set as Section E, it asks about it. Are they rejecting care? And if they are, the manual tells them what they're supposed to do like. Coordinate with the family to find out what's going on with this person. Did they do it? I can guarantee the answer is no. You know, and they have to care plan for noncompliance. In particular, when you have cognitive impairment, you can't just throw up your hands and be like, I don't know, Steve with dementia, didn't want to do his turning. Okay, well, maybe you should call Steve's daughter. All right. Um, yeah. And then they'll write that in the nurse notes. I straight up ask them, did that prevent you from meeting the standard of care? And then you will literally hear screech marks like, like in their brain or like, oh God, I'm on thin ice now. And there's no good answer. If they say yes, then I just hammer them with a litany of cases. Well, did you tell the family you couldn't meet the standard of care? How many times did you meet the standard of care? It's dangerous. Did you consider discharge because you couldn't meet the standard of care? We're usually they'll be like, oh, no, of course not. I'm like, Great. So my client's noncompliance is irrelevant to this case. Unavoidability right now. I will tell you that word appears in the manual is my last check two times. And number one, you can't give up. And number two, you can't make it up later. All right. It has to be clear at the time that this is unavoidable. All right. Sorry. Sorry. There's basic nursing assessment, care plan, communicate, implement, and revise if necessary. Well, when I have documents and I'm showing you that there is a breakdown in the care plan, well, how can you say it's unavoidable and not from the care plan not being appropriate, Right. They can't. Right. It's a logical leap. And trust me, I love arguing logic because I get it. All right. I got a horticulture degree and I was a farmer before going to law school. So, you know, deep medicine is not my thing, right? I like logic, okay? I'm not going to get in the weeds with an expert. I'm going to stay in the grounds of logic. With wounds. Okay. The tag has a section. All tags do for the most part. The guidance to surveyors. That is when the surveyors are going into the building. They should read this section when they're making their determinations as to whether or not the facility was in compliance with the federal code sections, and it requires them to monitor and evaluate the interventions. So I say, well, if the wound is getting worse, either the interventions aren't working or they're not being done right. They're the only two options. And if it's not working and there's no changes to the care plan, well, that would be a deviation of standard of care, correct? Where it's not being done, which is a deviation of standard care. Correct. You get the point right now you're going to see on every expert report you get from a defense person a whole list of your client's illnesses, because, you know. To my mind, they're in a nursing home. Okay? They're not training for the Boston Marathon. Okay. They're going to have some co-morbidities. I'll be like, Your client has this, this, this, this, this, this, this with the manual discusses in terms of these co-morbidities is they are risk factors. That's what they call them. These are risk factors. It's not like, well, you get so many comorbidities on this side of the scale and you get a pressure injury on the other side. These are risk factors, right? And then, you know, the studies there's there's very little studies that support defense medicine in this case. I mean, here's an example of one which found a these are a 1464 people. And these people were suffering for hemodynamic instability. That is, they could not move them. They have they look like starving people. They have cachexia and they're terminally ill. And out of 1464 people in the hospital, 19 of them got wounds that they said were unavoidable. Okay. These are not nursing home people. Okay. With hemodynamic instability and cachexia where you can't move them. You know, with falls. Right. Better get it right the first time. Because according to the manual, falls are a leading cause of injury, morbidity and mortality in older adults. You agree with that, right? Using that manual to undermine all those defenses on falls and unavoidability. And you may hear, well, what's this got to do with staffing? This is a full case and it's all about staffing because the manual tells us to evaluate the physical environment and staffing needs. Right. You can turn those dumpster defenses into dumpster fires. Look at that. Don't see any of those in New Jersey. Okay. So I'm running out of time here, but we're quick going to go through the experts that you need. I mean, you're going to need a nursing standard of care expert. These are RN's. You can get geriatric RN's or Wound certified RN's or assisted living facility RN's. If you've got an case but need a registered nurse that's still working. Like I like working guys and gals, they got good hands on knowledge. To me, wisdom is more important than education or intelligence. And so I use working RN's. You're going to need a medical causation expert. Some states, RN's can give causation on simple things like falls and wounds, But I still get a doctor. And in most cases, a doctor can. Only a doctor can give you death. Now, it depends on the type of wound I have or type of case I have wound doctors I use, sometimes surgeons, orthopedists for falls with fractures, vascular doctors. When I have wounds in the lower extremities, the defense is always like, Oh, will your person had diabetes? So you're going to probably want a vascular doctor or vascular surgeon tell you that the Doppler tests that were done rule out this being from arterial insufficiencies or from venous insufficiency. And of course, I use neurosurgeons for brain bleed cases, administrative experts. You're going to look for people who are licensed nursing home administrators so they have that license to comment on things going on in the facility, like what's going on with the money? Why does it matter What is understaffing mean? Right? Dietitians telling you dietary gets the short shrift because it is generally not refundable by Medicare. So nursing homes really go short on dietary and there are a million problems with it. I just looked at a chart today. My guy came in in November. He had a terrible wound. By December there was no dietary console until the end of December and there was a very close link between dietary and wound care. So oftentimes a dietitian can be a brutal expert and an encounter like if you want to get into the cost reports, you know they can and you got a good one to tell people like what are these numbers up here mean? What is their paying? Oh, that means they're paying $1.4 million in rent to themselves. Huh? Really? Do they sign both sides of that contract? Yes, they do. And they negotiate with themselves, which is not an arm's length transaction in a very high rental rate. So this is kind of the universe of generally what you can use for experts to put these cases on. Your case may be more specific or may require someone else. But generally speaking, that's how I'm looking at. Okay, here's a roadmap of what we talked about. What is nursing homes? What are these cases about? We talked about Pre-suit investigation, discovery, both depositions and documents, anticipating defenses and the experts. You're going to need to put it on if you do have any questions. Like I said earlier, please give me a ring. I will take the call. I promise you I'll get back to you. You want to send me an email, do so at your own risk. I get a lot of them. I do try to get back to people. If you send me an email and I don't respond within a day or two, I didn't get it. So just give me a ring and I'm happy to answer your questions. Thank you for your time and attention today. We covered a lot of materials, so if you go back through the slides, I do list the individual tags and regulation, the code sections, but thank you for your time and attention and for joining me today and having fun with nursing homes. Have a great day. Bye bye.

Presenter(s)

MBJ
Michael Brusca, JD
Partner
Davis & Brusca, LLC

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                                                          July 2, 2025 at 11:59PM HST

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                                                            July 9, 2025 at 11:59PM HST

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                                                                            July 2, 2025 at 11:59PM HST

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                                                                                January 16, 2026 at 11:59PM HST

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                                                                                          July 2, 2025 at 11:59PM HST

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