South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

I read an interesting article about getting medical records earlier this week.  The article raised several important points:  1) Its hard to get your own records, but its much harder to get someone else's; 2) Its hard to get ALL records; 3) Its hard to be sure that the records are accurate.

USA Today specifically points out that its harder to obtain medical records from treating facilities after something has gone wrong.  In fact, the article suggests that one way to avoid just this sort of problem is to routinely request copies of medical records.  This advice, which I think is very good advice, led me to wonder, well, just how often do you request records?  I mean, consider you're in the hospital having a baby.  Do you request the records on day 2?  Do you request the records upon discharge?  Do you request the records on day 2 and upon discharge? 

The article also points out that under federa law, every patient or designated representative has the right to see and copy the patient's medical records.  This is aparently not the case in nursing homes.  Nursing homes in this area routinely say that once a patient is discharged, they are no longer a patient, and therefore have no right of access to their records, at least not until those records have been thoroughly reviewed by their corporate attorneys.  Clever, don't you think? 

Worse than that, try arguing with in-house counsel about whether or not your deceased client's daughter (who was the Responsible Party for purposes of admission, who likely signed an arbitration clause that the nursing home will try to enforce against her) is a "designated representative" for purposes of reviewing and/or receiving medical records.

The article is worth the read.  And I don't think its exaggerated.  And its certainly something to think about. 

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The indictment alleges that the men ran about 70 nursing homes in Texas and other states and were responsible for a $200 million operation but hid their control of the facilities. Payroll companies: More than 150 sham payroll companies were created to avoid paying taxes, according to the indictment.

A former Hurst nursing home executive who crisscrossed the Atlantic as part of a tax-evasion scheme pleaded guilty Wednesday to conspiring to cheat the IRS out of $34 million.

As part of a plea agreement, Larry G. May will cooperate with the prosecution of two of his former North Texas business associates, who the government said helped control the nursing homes involved.  May, Stephen Michael Ewing of Bedford and Gary R. Trebert of Frisco were indicted in March on 29 federal counts including mail fraud, making false statements to a government agency, and defrauding the IRS and the U.S. Health and Human Services Department.

May also pleaded guilty Wednesday to perjuring himself by signing false tax returns for 63 nursing homes with payroll taxes totaling $4.45 million.  

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In many of our depostions, defense counsel asks questions that border on the ridiculous and sometimes cross the line to inappropriate or harassing questions. I ran across this artice that talks about a Plaintiff's attorney who did something about it.

A plaintiffs attorney sued his adversary for asking "inhumane" questions during a deposition that allegedly inflict "grievous emotional distress."   Bruce Nagel claims Judith Wahrenberger, his adversary in a medical malpractice case, acted tortiously by asking a husband whether he felt his wife had played a role in the death of their infant daughter by handling the child roughly.

"Wahrenberger's unsupported and intentional attack upon the parents was beyond any acceptable behavior of a civilized human being," alleges Nagel, of Nagel Rice in Roseland, N.J.

"I would not be doing my job if I didn't explore these areas," says Wahrenberger, of Springfield, N.J.'s Wahrenberger, Pietro & Sherman.

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The NY Times has an interesting article about how health care providers misuse HIPAA to conceal medical mistakes or neglect from family members.

An emergency room nurse told Gerard Nussbaum he could not stay with his father-in-law while the elderly man was being treated after a stroke. Another nurse threatened Mr. Nussbaum with arrest for scanning his relative’s medical chart to prove to her that she was about to administer a dangerous second round of sedatives.

The nurses who threatened him with eviction and arrest both made the same claim, that access to his father-in-law and his medical information were prohibited under the Health Insurance Portability and Accountability Act, or Hipaa, as the federal law is known.

Mr. Nussbaum, a health care and Hipaa consultant, knew better and stood his ground. Nothing in the law prevented his involvement. But the confrontation drove home the way Hipaa is misunderstood by medical professionals, as well as the frustration — and even peril — that comes in its wake.

Government studies released in the last few months show the frustration is widespread, an unintended consequence of the 1996 law.

Hipaa was designed to allow Americans to take their health insurance coverage with them when they changed jobs, with provisions to keep medical information confidential. But new studies have found that some health care providers apply Hipaa regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms — although no penalty has been levied in four years.

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David McGuffey is a great nursing home and elder law attorney from Tn.  He is kind enough to share with other nursing home attorney his summary of important cases and legal theories.  Recently he wrote an article about direct liability of parent corporations in the nursing home industry.  Below are excerpts:

In Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (Ill. Sup Ct. February 16, 2007), the Illinois Supreme Court affirmed the court of appeals, finding that a parent corporation may be directly liable where it exerts budgetary control over its subsidiary. In Forsythe, the court said the parent “can be held liable if, for its own benefit, it directs or authorizes the manner in which its subsidiary’s budget is implemented, disregarding the discretion and interests of the subsidiary, and thereby creating dangerous conditions.”  Mere ownership alone by a parent corporation is insufficient, as is having individuals serving on boards of both the parent and the subsidiary. Setting budgetary goals is likely insufficient. However, where a parent corporation specifically disrespects the actions of its subsidiary, using its ownership interest to command, then direct liability may be imposed over a specific controlled transaction. Under this theory, a parent is held liable for its own actions against a third party through “the agency of subsidiaries.”

So how is Forsythe applied to nursing home cases? In Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560 (1st Dist. Tex. App. August 3, 2006), the court held that the evidence was legally insufficient to support a verdict against the nursing home’s parent corporation and reversed a $2.2 million verdict. In support of the verdict, Plaintiff argued that the employment paperwork the nursing home staff completed that had the parent corporation’s name (HHD) on it, or refers to HHD as the employer, demonstrates HHD's employment of the nursing home staff and establishes HHD's vicarious liability. Plaintiff pointed to employment-at-will statements, job description acceptance forms, substance abuse policy notices, Equal Opportunity Employment statements, acknowledgment of time clock procedures, no solicitation policy notices, ethics and conduct policies, disciplinary and termination forms, and receipt of employee handbook acknowledgments as evidence supporting a finding that HHD employed the nursing home staff. Plaintiff also observed that the nursing home used administrative manuals containing HHD's policies and procedures, thus further indicating that HHD controlled the details of the work performed.” This, however, was insufficient because there was no evidence that HHD controlled “the details of the care.” The transaction specific inquiry found some elements of control (the first element), but none that related to the negligent care itself (the second element).

Where an injury results from insufficient staffing, if the parent assumes budgetary control which limits staffing, then the parent is controlling the details of care. There are now ample studies linking quality of care to appropriate staffing making dangers imposed by short staffing foreseeable. See, e.g., AHRQ, Nurse Staffing and Quality of Patient Care (March 2007) (See also Press Release describing study on how chain planning practices can hurt patient care). In light of a subsidiary’s contractual quality of care obligation to the Medicare and Medicaid programs, control that prevents the subsidiary from providing quality care under its provider agreements is likely eccentric.

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I found a great website that contains many of the standards of care for various specialities related to geriatric care.  Here is the website.

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It should be noted that there are certain violations discovered during the survey process that will have an affect on the well-being of a resident. For instance, not having sufficient staff to meet the residents needs, failure to notify the physician of a change of the resident’s condition, dehydration, malnutrition.

Moreover, prior conduct in general is admissible under the law under certain circumstances. Evidence of prior similar accidents is admissible to prove defect, foreseeability, notice appreciation of the danger and to show defendants’ disposition, intention, or motive in the particular acts for which damages are claimed. In the final analysis, the question of admissibility of similar accident is left to the sound discretion of the trial court. Regarding the particular issue for instance, the court has stated:

In determining whether accident are ‘substantially similar,’ the factors to be considered are those that relate to the particular theory underlying the case. Differences in the nature of the defect alleged may affect a determination as to whether the accident are substantially similar. See, e.g. Jackson, 788 F.2d at 1083. (“the ‘substantially similar’ predicate for the proof of similar accident is defined . . . by the defects . . . at issue.”) Moreover, ‘how substantial the similarity must be is in part a function of the proponents theory of proof.’ Exum 819 F.2d at 1162. (‘If dangerousness is the issue, a high degree of similarity will be essential . . . if the accident is offered to provide notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of the kind which should have served to warn the defendant.’ Id. at 1162-63, quoting 1 J. Weinstein and M. Berger, Weinstein’s Evidence, Section 41 (10), at 41-66-67 (1987).

Moreover, a prior report may be offered to prove defect and notice, and received into evidence solely on the issue of notice.

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Discoverability of Personnel Files

In D'Angelo v. U.S., a medical malpractice and negligent hiring action against Veterans Administration Hospital, the court allowed the plaintiff to discover specific information contained in three doctors' personnel files, specifically, "any and all records of patient complaints, disciplinary action, staff review of performance, malpractice actions (actual or threatened), job applications, review of job applications, performance evaluations, or other records showing the suitability or non-suitability of these three doctors." D’Angelo v. U.S., 588 F. Supp. 9, 10 (W.D.N.Y. 1983).

In In re Lavernia Nursing Facility, Inc., the plaintiff's heir brought suit against a nursing home, alleging that the patient had been sexually assaulted by a sixteen-year-old, unlicensed nurse aid employed by the nursing home. The plaintiff sought the personnel file of the nurse aid. The court of appeals of Texas upheld sanctions against the nursing home for failing to produce the "entire" personnel file. The court also held that "personnel file" means every record kept on the employee in question even though a "file" may not be kept together in the same location. Id.

Similarly, defendant health care organizations have been found to lack standing to assert their employees privacy interests in requested personnel files. When faced with an objection based on the privacy rights of the employee, courts have rejected such objections requiring the production of employment and personnel records. In the seminal case of Alterra Health Care Corp. v. Shelley, the Court held that an assisted living facility lacked standing to deny a discovery request of personnel files by asserting the constitutional right of privacy of employees. Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla. 2002). The court specifically disapproved Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So. 2d 778 (Fla. 5th Dist. Ct. App. 2000), which had held that a private employer had standing to assert the privacy rights of its employees.

In another case, the court held that a hospital did not have standing to assert the privacy rights of its nurses: A mere employee/employer relationship is not the kind of special relationship necessary for third party standing. North Florida Regional Hospital Inc., v. Douglas 454 So. 2d 759 (Fla. 1st Dist. Ct. App. 1984); See also, e.g. Humphreys v. Caldwell, 881 S.W.2d 940 (Tex. App. 1994) (a bad faith and unfair settlement practices case in which the Court affirmed the trial courts ruling that an insurance company’s conclusory allegations that its personnel files were private did not impose any duty on the trial court).

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Incident/Accident Reports

Incident reports are generated in the regular course of business of the nursing home any time there is an unusual occurrence related to a resident. These are required to be created both by DHEC and by OBRA, and any incident report should list any and all witnesses to an incident or occurrence, as well as a brief summary of what that witness knows. Additionally, this would provide evidence of notice, foreseeability and awareness of a dangerous condition.

This information has been found to be discoverable in the past. In Peacock v. HCP III Eastman, Inc., 497 S.E.2d 253 (Ga.Ct.App. 1998), the Court allowed the discovery of the nursing homes’ incident reports. The Court explained that these reports were relevant in light of Plaintiff’s claim for punitive damages. The Court also concluded that “the similar acts evidence might be admissible in both the liability and punitive damages phases of the trial and could show the [facility] had notice its employees were not properly supervising residents. . .” Id., citing Apple Investment Properties v. Watts, 469 S.E.2d 256 (1996).

The Court in both Peacock and Watts, supra, rejected the Defendant’s arguments that because the reports contained personal information about the residents they were privileged. The Court concluded that it could protect the residents’ personal information by limiting the use and dissemination of the records. Id. This can be accomplished by redacting the names of the residents.

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Boone Retirement Center, Inc. v. Hamilton, 946 SW 2d. 740( MO. 1997) as standing for the proposition that quality assurance records are not discoverable in a civil case such as the case at bar. The Defendant’s interpretation of Boone is incorrect.

 In Boone, the State of Missouri Division on Aging conducted inspections of Boone Retirement Center and found many critical areas where the facility was deficient. The State’s Attorney General initiated a criminal investigation, including the issuance of a criminal subpoena seeking records of the facility’s quality assurance committee. The facility refused citing the above statute. It later filed a writ of prohibition after the Judge issued an order for production.

 The Missouri Supreme Court carefully reviewed the statute, paying particular attention to the definition of “State” in the context of the case. In essence, the Court interpreted the federal statutory definition of “State” and determined that a grand jury, a creature of the State, is within the definition of State since it was the State prosecuting the Defendant. Boone is easily distinguishable from the case at bar.

 Quite simply, this Plaintiff is not the “State”. If Congress had intended that persons other than the State be prohibited from discovering quality assurance information, it would have so stated. The prohibition of production does not, therefore, apply in this case. And this makes sense. The obvious purpose of limiting the State from access to these records is to ensure the effectiveness of the process. Since the State regulates and inspects the facility, the facility would hesitate to accumulate information and prepare accurate reports that could ultimately be incriminating if the State has access to the information.

However, in the case at bar, civil litigation is not a common occurrence (such as annual State inspections) that would cause the facility to be less than accurate when conducting quality assurance. As such, the purposes behind prohibition of discovery are not thwarted. Even if this court wished to extend the definition of State to this case, none of the documents relied upon by the quality assurance committee would be included. The Boone court was very clear on this issue. The statute limits the scope of non-production to “records of such committee” and does not extend to records and materials generated or created outside the committee and submitted to the committee for its review. See Boone @ 743. If this Court prohibits production of the Defendants records generated by the quality assurance committee, it should not limit production of materials and information relied upon by the committee.

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In cases where the medical records contain peripheral,
non medical information, courts have ruled such
information is not privileged. See Ashford vs
Brunswich Psychiatric Center, 456 NYS 2d 96, (1982),
Moore vs St. John’s Episcopal Hospital, 452 NYS2d 669
(1982).

Notes written by a nurse are generally not protected
by the physician-patient privilege. See Weis v Weis,
72 NE2d 245. Weis is a leading case on this issue. In
Weis the court held that because the statute governing
the physician-patient privilege made no mention of
communications between a nurse and a patient, any
information given to a nurse was not privileged. This
case illustrates the trend seen in many cases where
the courts have interpreted the physician-patient
privilege. The privilege did not exist at common law
and courts construe the statute narrowly.

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