When a nursing home resident is injured in Florida, Florida Statute § 400.147, requires that the nursing home prepare an incident report. While nothing in the statute directs the type of information that must be contained in the incident report, obtaining the report can shed light on what happened to cause the incident.
Florida Statute § 400.147 not only requires that a nursing home prepare an incident report, it specifically provides that the report is discoverable. Typically speaking anything that is “discoverable” can be obtained once suit has been filed.
Unfortunately, courts interpreting this statute have ruled that the reports are protected from discovery as work product. Tampa Medical Associates, Inc. v. The Estate of Torres, 903 So.2d 259 (Fla. 2nd DCA 2005). This means, that in order to obtain the reports, a lawyer prosecuting the nursing home abuse claim in Florida must prove a need for the report and that he or she faces undue hardship without it. Undue hardship focuses on whether there are other ways to obtain information about how the incident occurred.
Proving need and undue hardship can be accomplished in cases where witnesses cannot be found or if the witnesses cannot recall what happened.
Nursing home staff members have usually been well trained to keep the description of an incident entered into the nursing notes extremely vague. For example, nursing notes may describe an incident as “resident fell, leg pain, sent to hospital for evaluation.” Because of such generic charting, the resident’s representatives are often left in the dark about what caused the fall.
This problem is compounded by several factors. First, nursing home residents often suffer from some sort of cognitive deficits, whether it be by reason of dementia, Alzheimer’s disease or simple age-related cognitive decline. Because of this, residents are often uncertain about how the incident occurred. In wrongful death cases, there is obviously no input that can be provided by the resident.
The next concern is that nursing home claims are subject to a pre-suit process. Obtaining records from a nursing home can take forty days or more as the nursing home is given thirty business days to produce the records of a former resident. On top of that, nursing homes often fail to provide all of the records, resulting in even more delay as the resident’s attorney must determine what is missing and inform the nursing home. As delay is on their side, nursing homes are often slow to respond to such requests.
Once all the records are obtained, the attorney must then have the matter reviewed by an expert witness, usually a registered nurse. Only if the expert finds that the nursing home failed to meet the standard of care does the attorney then have the ability to initiate the seventy-five day pre-suit process. Once suit is filed, it takes at least several months to take the first deposition.
Furthermore, nursing homes have very high employee turnover. This means that in order to take the depositions of former staff members, those individuals must be located and served with a subpoena to appear. It gets even worse as the nursing home will usually refuse to give the names of staff members who were working on the wing and shift in question. If so, a motion to compel must be filed, with a hearing set weeks or months out to get the names.
In all, the first depositions are often not taken for more than a year after an incident occurred. After such a lengthy delay, the nursing home staff members commonly assert they can no longer recall any details about the incident. Our Jacksonville nursing home abuse attorneys find that this happens in almost every case to some degree.
Once all of the available witnesses have been deposed, the attorney can then demonstrate to the judge that he or she was unable to obtain the information through other means and that the incident report is necessary to determine what happened. Hopefully, the judge will agree and require the nursing home to produce the report.