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Nursing Home Cases: Discovery Disputes

Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). The court identifies this litigation as a “grudge match.” When counsel spent the first 30 pages of a deposition reviewing Gerstein’s criminal history, the questions got under his skin. After he began answering with “that’s none of your business” counsel began instructing him not to answer. Counsel gave no reason for the instruction other than that the questions were designed to harass the deponent. The court noted that Fed. R. Civ. Pro. 30(d) specifies how to handle the procedure, which is to halt the deposition and seek a protective order; the rule does not allow a deponent to remain silent. Objections to the deposition must be stated concisely and must be non-argumentative and non-suggestive. Counsel may only instruct the witness not to answer for the purpose of preserving a privilege. The court noted that counsel violated this rule repeatedly, instructing the witness not to answer without seeking a protective order. Later, the deposition became more heated when opposing counsel asked Gerstein if he had engaged in homosexual conduct. Objections were exchanged again and the witness was instructed not to answer, again, without seeking a protective order. After a break, Gerstein developed “amnesia” and started playing word games. Although the court found opposing counsel’s conduct “shameful,” the conduct of Gerstein’s counsel instructing him not to respond, together with feigned inability to remember, purported ignorance of ordinary words, was unprofessional and violated the Federal Rules of Civil Procedure as well as ethical rules governing the practice of law. The trial court refused to sanction Gerstein because both sides had behaved badly. On appeal, the court held that the trial court should have used its authority to maintain civility and professionalism. Sanctions were in order, although they need not be monetary. Rather than remanding the case for sanctions, the court censured all attorneys for conduct unbecoming a member of the bar; any repetition “will lead to sterner sanctions, including suspension or disbarment.” Decided: February 7, 2007.

Ohio Cas. Group v. Am. Int’l Specialty Lines Ins. Co., 2006 U.S. Dist. LEXIS 52070 (D.N.Y. 2006). Ohio Casualty filed a motion to compel other insurers to produce insurance claims file documents that were allegedly covered by work product doctrine. The action involved a coverage dispute between four insurers following a $78 million verdict in Sauer v. Advocate, Inc. (Circuit Court, Polk County, Arkansas, June 2001). “Advocat was apparently insured from October 1996 to January 1998 under a primary policy issued by Reliance Insurance Company ($ 1 million coverage) and first-layer excess policy issued by AISLIC ($ 50 million coverage). Advocat was apparently insured during 1998 under a primary policy issued by Admiral ($ 1 million coverage subject to a $ 250,000 self-insured retention), a first-layer excess policy issued by Gulf ($ 5 million coverage), and a second-layer excess policy issued by Ohio Casualty ($ 45 million coverage).” Ohio Casualty’s claims included an allegation that the other insurers acted in bad faith by refusing to settle and sought the claims files in support of this claim. The court ruled that the claims files were prepared in anticipation of litigation and that absent an exception to the work product doctrine, they were not discoverable. Bad faith claims against an insurer are not a per se exception to the work product doctrine. Ohio Casualty then argued that allegations concerning post-verdict conduct constituted waiver. The court found no waiver. Finally, Ohio Casualty argued “need” or “hardship.” The court concluded that discovery had just started, only one deposition had been taken and Ohio Casualty had not established that it could not secure the requested information in depositions. The motion was denied without prejudice.

Branco v. Life Care Ctrs. of Am., Inc., 2006 U.S. Dist. LEXIS 28677 (D. Wash. 2006). Plaintiff’s estate brought suit against Life Care’s Bothell facility after she slipped out of a shower chair, was injured and later died as a result of those injuries and other pre-existing conditions. Plaintiff sought copies of incident reports regarding falls, transfers and assists for the three years prior to Plaintiff’s fall that Defendant compiled pursuant to a statutory quality assurance program. Defendant sought a protective order barring their production arguing on three alternative grounds: (1) the incident reports were generated pursuant to a quality assurance program and are shielded from discovery under the statutorily-created discovery privilege in RCW 43.70.510(4); (2) the incident reports are not relevant; and (3) the request for the incident reports is unduly burdensome. The first ground was rejected because the privilege applies only where reports are produced for the sole purpose of healthcare evaluation and exclusively for the use of the quality assurance committee. The evidence suggested other uses for the reports including risk management and assessing the facility’s liability in a potential lawsuit. The record also showed that the insurer owned the incident reports and its ownership of them was fatal to the privilege. Defendant’s relevance objection was overruled because the reports might lead to the discovery of relevant evidence. They might also show that Defendant disregarded a known risk. The court was not convinced that the burden was so great that these highly relevant documents should be withheld. The court noted that Defendants had previously reviewed the incident reports on at least two occasions which tends to indicate that the burden is not significant. The motion for protective order was denied and the Defendant was ordered to produce three years of incident reports.

Estate of Finley v. Beverly Health & Rehab. Servs., 933 So. 2d 1026 (Miss. Ct. App. 2006). Plaintiff appealed trial court’s order granting motion for summary judgment. “During discovery, the Appellees proposed a request for admissions “asking the plaintiff to admit or deny whether each individual caregiver acted within the standard of care.” Jordan responded to the request with non-responsive answers. After receiving Jordan’s response, the Appellees filed a motion asking the court to determine whether the responses were sufficient. After the court determined that the responses were not sufficient, it ordered Jordan to file an amended response. Jordan complied, and her amended responses were also found to be insufficient. Upon motion from the Appellees, Jordan’s second set of responses were deemed admitted for failure to sufficiently respond to the request.” Generally, it was Plaintiff’s position that the negligence was due to a pattern of neglect rather than neglect by any one person. The purpose of Rule 35, however, is to determine which facts are not in dispute; since Plaintiff did not deny the requests or provide a qualified denial by stating that the requests could not be admitted or denied for stated reasons, Plaintiff failed to comply with the rule. The trial court did not err by deeming the requests as admitted. The trial court did not err in denying a motion to withdraw the denial and amend the response, which Plaintiff did not submit until two weeks prior to trial. In reviewing Plaintiffs’ theory of liability, the court concluded that the alleged injury could only be caused by lack of staff or by staff negligence. Plaintiff provided insufficient evidence of lack of staff, and the “admissions conclusively found that none of the caregivers assigned to Finley had breached the standard of care. No genuine issue of material fact regarding causation has been produced by Jordan. In the absence of causation and a breach of the standard of care, no action can be maintained against Banks or Sinclair.” Summary judgment was affirmed.

Note: Abusive Requests to Admit cannot be ignored since the consequences of having them deemed admitted are catastrophic. In each jurisdiction, the rule should be followed carefully, but in general, if the Defendant asks Plaintiff to admit a “theory” such as the standard of care was not breached, or admit that no negligence occurred, then unless the theory is not part of Plaintiff’s case, those requests should be denied or should be the subject of a qualified denial because they include too many sub-issues to be admitted. For example, admitting that a nurse did not breach the standard of care might also be an admission that she had no duty to report insufficient staff.

Rosenblatt v. Windsor Park Nursing Home, Inc., 2006 NY Slip Op 3069, 1 (N.Y. App. Div. 2006). Depositions of nursing home maintenance supervisor and administrator allowed after Plaintiff demonstrated that other deposed individuals had insufficient knowledge of resident’s injuries and likelihood that the additional witnesses possessed information that was material and necessary.

Hayes v. Premier Living, Inc., 2007 N.C. App. LEXIS 370 (N.C. Ct. App. 2007). In wrongful death case against nursing home, Defendants appealed trial court’s order granting motion to compel three incident reports prepared by staff, and denying Defendants’ motion for protective order based on peer review privilege. Incident reports were prepared by nursing home following unusual circumstances and documented facts surrounding them. Defendants provided affidavit of Administrator stating that the home used a continuous quality improvement team to assess quality of care and that purpose of reports was to maintain and improve quality. In deposition, however, Administrator said team does not typically use individual reports, but discusses trends. Nurses preparing reports are not part of the CQI team. “The peer review privilege is designed to encourage candor and objectivity in the internal workings of medical review committees.” Here, Defendants did not present any evidence showing that the reports were (1) part of the CQI team’s proceedings; (2) produced by the CQI team; or (3) considered by the CQI team. The peer review statute does not protect any and all records which may be subject to consideration by the CQI team; rather, it protects only those records which were actually a part of the team’s proceedings, produced by the team of considered by the team. Because the reports did not fall into any protected class of documents, the trial court did not abuse its discretion in compelling production of the reports.

Stanton v. Univ. Hosps. Health Sys., 166 Ohio App. 3d 758 (Ohio Ct. App. 2006). In this wrongful death case, Plaintiff appealed after court denied protective order and ordered Plaintiff to produce nurse paralegal for deposition on issue of how expert reports were generated. When Defendants deposed Plaintiffs’ experts, they discovered that Plaintiffs’ nurse paralegal assisted both experts in preparing their reports. Defendants then requested the deposition of the nurse expert and Plaintiffs refused. After the trial court ordered the deposition, Plaintiff appealed, arguing that an in-house nurse paralegal could not be deposed because it would implicate work-product. Because Ohio law suggests that expert reports must be authored by the expert who is testifying, the trial court properly allowed inquiry into the sole issue of how the expert reports were generated.

Holmes v. Nightingale, 2007 OK 15 (Okla. 2007). This case concerns a dispute under the Health Insurance Portability and Accountability Act (HIPAA). The issue was whether Plaintiff’s mental and physical condition were in issue by filing a malpractice suit and whether the trial court erred by allowing, but not requiring, ex parte oral communications with health care providers. On appeal the court held that such an order does not violate HIPAA. The court cited Bayne v. Provost, 359 F.Supp.2d 234 (N.D. N.Y. 2005) in finding “there is no bright line HIPAA rule barring all ex parte discussions. Rather, … such contacts are appropriate once the protections required by HIPAA are met.” The trial court’s order, however, was deficient because it was not limited to the medical information relevant to the claims in the case and had the potential to allow defense counsel to obtain all medical and psychological information on the patient even though it was irrelevant.

Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830 (Fla. 5th DCA 2007). Defendants appealed order compelling response to 195 requests to produce and requiring them to prepare a privilege log. On appeal, the court noted the requests were expansive and unlimited by any time frame. The requests included “all incident, occurrence, and/or accident reports” from all facilities operated by Life Care Center of America, Inc., nationwide; all payroll analysis reports, key management indicators, staff productivity reports, labor distribution reports and/or similar reports for Life Care Center of Melbourne; all documents generated related to the corporate supervision or oversight of Life Care Center of Melbourne budget expenditures for labor and supplies; all employee work schedules, employee sign-in sheets (including Medicare), and time cards and/or time sheets showing the identity, number (quantity), and classification (e.g., RN, LPN, nurse aide, and so on) of any nursing personnel (including nurses, nurses aides, medication aides, orderlies, and so on) for Life Care Center of Melbourne; and all records of complaints from staff at Life Care Center of Melbourne.” Defendants responded raising objections based on the absence of limitations based on scope and time, raised confidentiality objections and third party privacy objections. Without considering Defendants’ objections, the trial court denied Defendants’ motion for protective order and required Defendants to produce privilege logs, which were 226 pages long. The court of appeals found that the trial court’s order was a departure from the essential requirements of law. The trial court should have addressed the discoverability of the requested documents before ordering Defendants to review them all for privileged material. The trial court order was quashed. In ruling, the court reminded counsel for Plaintiff of their responsibility to refrain from making frivolous discovery requests and reminded Defendants’ counsel of their duty to comply with all legally proper discovery requests.

Smith v. Manor Care of Canton, Inc., 2006 Ohio 1182 (Ohio Ct. App. 2006). Resident died after becoming entrapped between a mattress and bedrail. Nursing home employee provided report to nursing home administrator, which administrator crumpled and put in desk drawer. Later, second report was prepared. During deposition, Plaintiffs asked: “(1) what was Ms. Airhart’s reaction upon learning of the events about Mr. Mathias; (2) what did Ms. Airhart say when she crumpled up Ms. Boykins’ and the aide’s statements and threw them into the desk drawer; (3) what additional conversation did Ms. Airhart have with Ms. Boykins and the aide during their meeting; (4) what conversation did Ms. Boykins have with the director of nursing a day or two after Mr. Mathias’ death during a meeting initiated by Ms. Boykins and another nurses aide; and (5) what concerns did Ms. Boykins and the aide express to the director of nursing at their meeting.” Employee was instructed not to answer because information was subject to the peer review privilege and non-discoverable. Plaintiff filed a motion to compel. Defendants did not respond and the trial court granted the motion to compel. Defendants then filed a motion to reconsider and a motion for protective order. The trial court denied both motions. On appeal, Defendants argued that the trial court should have reviewed the information in camera before determining there was no privilege. On appeal, the court found that Defendant could not complain that the trial court did not review information to determine whether it was subject to the privilege when no information was given to the trial court. To support a claim of peer review privilege, at a bare minimum the party claiming privilege must bring to the court’s attention the existence of such a committee and show that the committee investigated the case in question. Defendant should also have shown that the person Plaintiff inquired about was a member of the committee or participated in its investigation. The court rejected Defendants’ argument that its failure to respond to the original motion to compel as excusable neglect.

United States ex rel. Parikh v. Premera Blue Cross, 2006 U.S. Dist. LEXIS 90814 (D. Wash. 2006). This case is a false claims case. Plaintiff filed a motion to compel after Defendant asserted an attorney-client privilege regarding conversations attended by Defendants’ Medicare Compliance Officer. During depositions, Defendant argued that Mr. Istafanous was an agent of the legal department and participated for the purpose of identifying risks and determining appropriate actions based on concerns the relator was raising. The court held that Defendant bears the burden of proving privilege. The court found “it is not clear from the record that Mr. Powers or Ms. Hinthorne were actually aware that any particular meeting attended by Mr. Istafanous was conducted as part of an internal legal investigation by Premera or that they were aware of his role as a “representative of the legal department. … [the court allowed] Relator to reopen the depositions of Mr. Powers and Ms. Hinthorne. At the depositions, Relator may question the witnesses to determine whether they and other participants at meetings attended by Mr. Istafanous were informed: (1) that the particular meetings were conducted as part of a legal investigation by Premera; and (2) that Mr. Istafanous attended the meetings as a representative of the legal department. If the witness clearly indicates that the participants in a particular meeting attended by Mr. Istafanous were informed that the meeting was conducted as part of a legal investigation and of Mr. Istafanous’s role, Defendant may assert attorney-client privilege for communications at such a meeting. If the witness is unable to testify that attendees at a particular meeting were informed that the meeting was conducted as part of a legal investigation and of Mr. Istafanous’s role, Defendant shall not be permitted to assert attorney-client privilege for communications at such meetings and Relator may continue to question the witness regarding the substance of such communications.” Decided: December 15, 2006.

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