As the person initiating a lawsuit, the plaintiff has the burden of proving their case. While it may seem odd, the party whom the case is being brought against can sit back and do nothing if they wish as they have no obligation to present any evidence. In the course of most lawsuits against nursing homes one of the primary ways in which facilities attempt to defend themselves against accusations of abuse or neglect is to rely upon the testimony of staff as evidence care was provided competently.
Occasionally, there are instances where staff are forthcoming and will admit that a patient was not properly care for, but these situations are relatively few and far between simply due to the fact that staff obviously have a ‘horse in the race’ and faced between losing a job and testifying truthfully– you can guess where their testimony will be.
Significance of Medical Records in Nursing Home Cases
The other essential component of most nursing home lawsuits is a patient’s chart from the facility. By law, each facility has a responsibility to keep accurate records for each patient and document certain portions of his or her care including: admission intakes, care plans, and physician’s orders amongst other components.
The trouble with most patient’s nursing home charts is that they are frequently disorganized deteriorate rapidly over the course of the patient’s admission. While lackluster record keeping has become the norm at some facilities, clever attorneys for nursing facilities frequently create ways to get around the issue in some claims when they discount the value of the patient’s chart in favor of testimony from an employee or by claiming that staff are more focused on providing quality care than concentrating on providing a detailed recording of each patients chart.
Holding Nursing Facilities Responsible For Inadequate Medical Records
I was encouraged to read about a recent decision from the U.S. Court of Appeals for the Sixth Circuit which upheld the use of the res ipsa loquitur (“the thing speaks for itself”) doctrine to a nursing home lawsuit alleging that a facility failed to provide medication to a patient. In traditional tort-law cases where the plaintiff has the burden of establishing his case by establishing ‘duty’ ‘breach’ before addressing damages. However, a case pursued under the theory of res ipsa essentially allows a defendant to be presumed to be negligent if they had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.
The decision before the court in the matter, Dorothy Freudman v. Landing Of Canton (an Emeritus owned facility), 6th Cir., No. 12-3130 was weather the doctrine could apply to a situation where the records from the facility were there were no notes as to the administration of the medication for the deceased patient. In upholding the application of the doctrine, the court recognized that the facility was the only reasonable party whom could be responsible for the patient’s medication regime and hence applying the doctrine was reasonable.
While the impact of this appellate court decision technically may only apply to cases under its jurisdiction, as an attorney who repeatedly sees inaccurate and missing records creep up in nursing home litigation I hope that this decision serves as a wake-up call for all facilities to recognize their responsibilities to provide quality care for each patient.