Uncover false charting in nursing home records

In cases alleging nursing home abuse or neglect, use discovery aggressively and creatively to determine whether the defendant facility’s employees engaged in false charting or otherwise tampered with the resident’s medical records.

Ask your client to obtain copies of pertinent medical records before you file suit, then compare them with the ones you receive through discovery to determine whether nursing home employees altered the original records. The nurses’ notes—including what medications or other treatments the resident received and when—and records documenting the resident’s daily activities are especially useful: They may show whether staff actually followed physician orders or, instead, entered false information in the chart to cover up mistakes or neglect. Request a color copy of any record that appears suspicious.

Prepare a list showing when each staff member made an entry in the resident’s chart and compare it against payroll records and time sheets—don’t just rely on staff sign-in sheets or schedules. If a staff member was not on the clock but a note in the medical record indicates that the person provided care at that time or on that date, you have strong evidence of false charting.

Another way to uncover false charting is to compare the nursing home records to the resident’s hospital records. It is not unusual to find entries in the nursing home records when the resident was actually in a hospital.

David A. Couch
Little Rock, Arkansas

Ease your relationship with difficult clients

Every lawyer occasionally has to deal with a difficult client. Set the tone by maintaining a professional demeanor and ensuring clear attorney-client communication. These guidelines—along with the applicable rules of professional conduct—will help you keep the relationship positive and productive.

Understand your role. Your job is to advise a client on the steps necessary to prepare a case, the consequences of taking different courses of action, and the range of possible outcomes. Your client decides which course of action to follow. If a client wants you to make all the decisions, resist. Encourage him or her to get help making decisions from trusted family members, friends, and other advisers.

Establish ground rules. Consider outlining in writing your and your client’s roles. Tell your client that he or she is responsible for providing truthful information in a timely fashion, listening to and asking questions about advice you give, and making prompt and informed decisions.

Keep communication records. To the extent possible, keep detailed documentation of your communications with the client. E-mail is convenient and can be used to memorialize calls, meetings, and other contacts. Consider saving hard copies of e-mail messages in case your electronic copies are somehow lost. When meeting with a client in person, have a staff member take notes and send the client a typed summary, inviting him or her to point out any inaccuracies.

Remain calm. Difficult people can bring out the worst in us. Remain calm, patient, and consistent with your client. Make sure that your staff does the same and that they understand they should not tolerate abusive behavior by a client.

Explain the boundaries of appropriate conduct so that staff members can inform you if a client has crossed the line. Call the client on inappropriate behavior as soon as it happens and make it clear to him or her that if the conduct continues, you will terminate your representation.

Mabry DeBuys
Seattle

Confront the ‘know-nothing’ witness

If a defendant company has not honored its discovery obligations and you suspect its strategy is to have a witness say “I know nothing” at deposition, draft questions that will highlight this tactic.

For example, a defense witness may deny knowing about routine documents or matters that are clearly within his or her scope of responsibility. When this happens, ask questions that make the witness choose between abandoning the denial stance and sounding embarrassingly uninformed, such as, “You are telling this jury that as safety director for XYZ Trucking Company, with a responsibility to prevent truck wrecks and determine the causes of truck wrecks, you have no information about why the driver lost control and hit the plaintiff?”

Don’t take “I don’t know” at face value. Follow up by asking:

Who does know?
Where is the information? Is it in a document, a database, or somewhere else?
If your boss ordered you to find this information, how would you do so?
Do any company manuals or policies address the retention or nonretention of this information?

If the defendant chooses a corporate representative who professes little or no knowledge of topics listed in the deposition notice, begin the deposition by getting him or her to acknowledge that Federal Rule of Civil Procedure 30(b)(6) requires the defendant to select a witness who can testify about information reasonably available to it. Remind the witness that “out of all its employees, the company chose you.”

Return to this theme whenever the witness claims to have a lack of knowledge. When you get to court, the judge and jury will see for themselves the defendant’s failure to meet its discovery responsibilities.

Michael L. Roberts
Gadsden, Alabama

Send your comments and questions about the online version of TRIAL to us at trial@justice.org

Good counsel August 2007 | Volume 43, Issue 8

Uncover false charting in nursing home records

Ease your relationship with difficult clients

Confront the ‘know-nothing’ witness

Good counsel
August 2007 | Volume 43, Issue 8