Beat back the bias

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Nursing Homes

October 2013, Volume 49, No. 10

Beat back the bias 

Lance D. Lourie

Facing preconceived juror attitudes and biases in nursing home cases requires plaintiff lawyers to ward off various defense arguments, from a resident’s comorbidities to insufficient family involvement. Learn how to tackle these issues head-on.

The issues in nursing home cases often overlap with those in other personal injury actions, such as medical malpractice cases, because of medical, causation, and standard of care issues. But nursing home cases raise unique problems, including juror attitudes toward these issues that could impede your client’s case. So plaintiff attorneys must learn how the defense uses juror attitudes to their advantage and how to address them.

During voir dire, your goal is to identify juror attitudes, beliefs, and biases; strike the jurors with the strongest antiplaintiff attitudes; and employ the remaining jurors’ attitudes and beliefs in such a way that they bolster rather than harm your case. In particular, you want to show that a verdict for the plaintiff fits within the jurors’ attitudes, beliefs, and value system. Once you recognize these attitudes, you can develop themes to address them that are short and simple, premised on undisputed facts, and bring together the plaintiff’s theory of the case with the jurors’ attitudes and beliefs.

Verdicts in nursing home cases are driven by factors different from those in most personal injury actions. For example, in a typical automobile accident case, jurors may focus on traditional damages, such as medical expenses, lost wages, permanent impairment ratings, and lasting results from the injuries. But traditional damages are almost always absent in nursing home cases, and plaintiff verdicts are driven by the defendant’s wrongful conduct instead.

It is important to recognize that most jurors have preconceived notions about nursing homes—they believe that many nursing homes do not provide good care, the corporations that own and operate the homes cut corners to save money, and most facilities are understaffed.

Develop themes that focus on the defendant’s wrongdoing. Some examples are:

  • The defendant puts profits over people.
  • The facility was grossly understaffed, and the defendant knew it.
  • The staff were not adequately trained.
  • The case is not just about what happened to Jane Doe; it is about a larger, systemic problem at the facility.
  • This happened to the resident because of the defendant’s decisions to not adequately train its staff and understaff the facility.

It is better to focus on institutional negligence rather than the negligence of lower-level employees, who often are paid minimum wage and may be sympathetic. Concentrate on the ethics of the defendant’s conduct, especially corporate conduct, and the defendant’s failure to accept responsibility for its actions. Evidence in support of these themes must be uncovered, developed, and presented, including fraudulent charting incidents; systemic violations of facility policies and procedures, as well as state and federal statutes and regulations; and former employees’ testimony about systemic problems the defendant failed to address despite knowing about them.

Because defense attorneys understand that the plaintiff is focusing on the defendant’s conduct, they attempt to reframe the issues and make the case about the resident and his or her family members, who are usually the named plaintiffs. They develop themes relating to the resident’s comorbidities and shortened life expectancy; complex medical issues stemming from the resident’s medical conditions (involving the standard of care and causation); the conduct of the resident’s family; minimizing damages; and what happened to the resident on a particular day, thus avoiding evidence of systemic problems at the facility.

Damages

Nursing home cases are often more about pain and suffering and loss of dignity than about wrongful death. Careful time must be taken during voir dire to identify and weed out jurors who would not support a verdict that includes damages for pain and suffering. Some lawyers avoid those words because they believe that tort “reformers” have used rhetoric to associate them with unreasonably high verdicts in other personal injury cases. But in nursing home cases, you can focus on the resident’s loss of dignity, which does not have any ­negative connotations and involves concepts that even the most conservative jurors agree with.

To bolster a claim for a nursing home resident’s pain, suffering, and loss of dignity, here are some ideas.

  • Use multiple witnesses to prove that the pain and suffering was substantial. Consider including friends, hospital or nursing home nurses, and notes of subsequent health care providers.
  • Use witnesses from both before the resident entered the facility and after the injuries occurred.
  • Show that the resident was being medicated for pain.
  • Have your expert discuss and explain the different levels of pain that the resident endured.
  • Cross-examine the defendant’s employees and experts regarding the resident’s pain.
  • Provide visual demonstrations of painful procedures, such as debridements.

Comorbidities

While comorbidities and preexisting conditions play a role in any personal injury action, they are more significant in nursing home cases because most residents of long-term care facilities have significant comorbidities, including chronic illnesses such as Alzheimer’s, dementia, diabetes, vascular disease, heart conditions, and kidney failure. They are the cornerstone of most of the facility’s defenses because they potentially affect all aspects of liability and damages. Defendants use comorbidities to argue that

  • the resident’s preexisting medical conditions caused the injuries at issue and were already causing the resident significant pain and suffering.
  • the bedsores or other injuries were unavoidable; the fall was just an accident.
  • the resident was going to die soon anyway.
  • the comorbidities reduced what the applicable standard of care required because the resident was so difficult to manage.

Many times these defenses work because these assertions are at least partially true. When combined with jurors’ preconceived notions regarding nursing home residents, they tend to favor the defense and make the plaintiffs appear to be overreaching or exaggerating.

You must handle these issues carefully and explore them in detail during voir dire. In particular, explore possible juror attitudes that the case must be weak, have little merit, or have less value because of the resident’s comorbidities.

Depending on your client’s circumstances, there are numerous themes you can develop to combat comorbidity defenses and address juror attitudes during virtually all stages of the trial. These themes include:

  • The resident’s preexisting conditions necessitated placement in a nursing home.
  • The facility promised the resident’s family that it could be trusted and would provide good care.
  • The defendant knew about these conditions, was paid to take care of the resident, and should not have admitted him or her into the facility if it could not provide adequate care.
  • The nursing home was required to provide quality care regardless of the circumstances.
  • Medical conditions are not an excuse for resident neglect.

The plaintiff must show that the defendant is trying to use comorbidities to escape accountability. The defendant should not be allowed to use your client’s comorbidities as a defense if it was not doing all that it could, and all that was required, to provide the resident with quality care and to address the resident’s health problems.

Shortened life expectancy

Almost all nursing home residents have a significantly shortened life expectancy, and the defense will attempt to use this to its advantage. Identify jurors who have strong beliefs regarding this issue, and explore the notion that the claim (or the family’s recovery) should be reduced because the resident had less time to live.

The best approach is to develop themes addressing this issue. Some examples include:

  • “A long, productive life deserves respect.”1
  • The victim’s age should be turned into an asset. After caring for others his or her whole life, the trust that he or she would be cared for was betrayed.2
  • Every life is precious, and the defendant doesn’t have the right to take away any life.
  • A good day for the resident may not have been the same as a good day for an active young person, but it was still something that the defendant had no right to take away. The defendant also was paid to protect the resident’s quality of life.
  • The resident was not admitted to the nursing home to live forever, but so that he or she could live reasonably well during the resident’s remaining years.3
  • This case is not about the fact that the resident died but about the terrible way it happened, which was preventable.

If the resident still had a reasonable quality of life, address this at trial. Show that the resident still had a life worth living, to negate an inference from the defense that the resident’s quality of life had diminished such that it was no longer worth being alive. In particular, it is important to show that the resident still enjoyed various aspects of his or her life, such as a particular television show, visiting with family, holidays, or certain meals. You can do so with testimony from family members, friends, and the plaintiff’s experts. While often overlooked, this issue also can be addressed with the defendant’s employees and experts, who may admit that the resident still enjoyed various aspects of living, was often happy, and enjoyed certain daily activities.

Family issues

Generally, many jurors are afraid of nursing homes, and specifically, they are afraid of being placed in a nursing home or having a family member in one. Defense counsel will attempt to exploit this fear by blaming the victim and showing the family’s lack of personal responsibility.

Because some jurors strongly believe that families should take care of their loved ones at home and not place them in a nursing home under any circumstances, they will judge your clients for doing so. These jurors tend to balance their desire to punish the defendant for egregious neglect against their desire not to reward the family. You must devote significant time to these issues in voir dire. Find out whether any jurors have had primary responsibility for taking care of a disabled or elderly adult or have had to decide to put someone in a long-term care facility. Also explore with prospective jurors the concept that just because the family put someone in a nursing home does not mean they do not want to provide care themselves. And ask whether the family assumes the risk that something might happen to their loved while in a facility.

Regardless of whether the evidence relating to family issues—including why the resident was placed into the facility—helps or hurts your case, do not ignore it. The jury needs to hear about the family’s willingness to accept personal responsibility on this issue. If you do not address it, the jury will make adverse assumptions that could damage your case.

During the trial, it is extremely important to develop themes relating to the family issues and to present evidence that supports your position. Tell the story of the resident’s declining condition and how the family cared for him or her before he or she entered the facility. Explain why care could not be provided at home, such as family members had to work to provide for their families, medical conditions warranted more than home care, or it was dangerous to keep the person home. Demonstrate what the family did to avoid placing him or her in a nursing home; explain that the family visited several facilities before making a decision.

Have your expert and witnesses explain why the resident needed to be in a nursing home, and cross-examine the defendant’s employees and experts about it. Get the defendant’s employees to admit on cross-examination that they led the family to believe that they could and would provide good care to the resident, and use your witnesses to show that the family would not have placed him or her there had they known that the facility was not going to provide good care.

The family must be seen as caring and attentive, so the jury needs to hear that your client is not avoiding accountability. The extent of the family’s involvement after the resident was admitted to the nursing home is critical. If the family was not appropriately involved in the resident’s care after admission, you should not take the case. For example, you want to be able to show that the family visited regularly, took an active role in making decisions regarding the resident’s care, participated in care plan meetings, and was responsive to the facility regarding the resident’s needs. Your clients must be prepared to explain how often they visited and how attentive they were.

Also ask the defendant’s employees about this in depositions to avoid any surprises at trial. If employees are going to testify that the family was not attentive or did not visit often, you need to know before it comes out on the witness stand. If a critical family member, such as a spouse or child, did not visit often, there must be a good explanation. Family members who do not live nearby should be prepared to testify that they kept in contact with the relatives who were regular visitors and that they personally made periodic visits.

Another common family issue relates to the question: If the care was so bad, why did you leave your father there? If there are legitimate problems, jurors expect family members to respond assertively and in a timely fashion. This can be a delicate issue. Sometimes family members and former nursing home employees will testify about deplorable conditions in the facility, such as residents lying in feces or not being fed, and the facility smelling of urine. Jurors tend to believe this testimony is exaggerated because, if it was so horrible, it is hard for family members to explain why they left their loved one there. Do not let your clients exaggerate the circumstances.

To address this problem, you can pre­sent evidence that the defendant promised the family that conditions would improve; the family tried to find a better facility; it was the only nursing home that was close to the family; the family didn’t realize how bad the facility was until later; the facility told the family that the bedsores and other ailments were unavoidable; and the family trusted them. Enough emphasis cannot be placed on the importance of these family issues and their impact on the jury.

Learning to recognize and overcome juror attitudes and biases toward nursing homes and residents is crucial to your client’s case. If you scrutinize these issues carefully, you will be better equipped to combat them during voir dire and trial.

Lance D. Lourie is a partner with Watkins, Lourie, Roll & Chance in Atlanta. He can be reached at ldl@wlr.net.

Notes:

  1. Douglas L. Keene & Rita R. Handrich, Elder Abuse and Neglect: Issues in Litigating Nursing Home Cases, ATLA 2002 Annual Convention Reference Materials 1049, 1059.
  2. Id.
  3. Id. at 1060.


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