14 Trial Lawyer • Winter 2023 By Chris Kuhlman OTLA Guardian Sitting in the courtroom, five minutes after a 10-2 defense verdict, watching the defense lawyers smiling, congratulating each other, and shaking hands with the insurance adjuster and the corporate administrators of a nursing home facility is never fun. Having profited off your client for 10 plus years (and also the taxpayers who pay for Medicare) and then killing her and getting away with it, is an experience no trial lawyer wants to be a part of, let alone have to witness. What makes it worse, your client, a 96- year-old woman, served as a nurse in Bastogne during World War II, was an elementary school teacher for 40 plus years in the town where the trial took place, volunteered for the local Kiwanis for another 20 years, and raised five children and was daily involved in her grandchildren’s lives. How could this happen? Many plaintiff lawyers whose focus is primarily on motor vehicle or medical malpractice cases occasionally find themselves in a situation where a nursing home case walks in the door. While any good trial attorney who is willing to work hard and learn can certainly handle a nursing home negligence case, there are distinct pitfalls, tools and resources that make litigating a nursing home case unique from the general personal injury or even medical malpractice case. Those who are venturing into their first nursing home case should be aware of those pitfalls, tools and resources, so they can be prepared, get a good result for their client and exponentially increase their chances of being on the right side of the verdict. The client Understand your client and who the jury will identify with as your client. The first step when the nursing home case comes into the door is understanding your client and your client’s limitations that placed them in a nursing home. Many nursing home clients are not in the facilities just for medical care, but also for cognitive issues. If the gruesome stage IV pressure ulcer case comes in, it might seem simple, but keep in mind that once you get the nursing home chart, you will likely be confronted with a chart that says “all care was provided” day in and day out, even though the degradation of the wound and its severity tell a different story. If your client has cognitive issues, they will not be able to remember or communicate that they were not regularly turned and repositioned. Further, if the client’s child lives hundreds of miles away, they may not have visited frequently enough to fill in these gaps. You will have to build a case through the records. Further, problematic is the fact that while you may represent a sweet 96-yearold woman, who lived a life beyond reproach, if the defense counsel has their way, the jury likely won’t identify with the beloved great-grandma as the true client of the case, particularly if she has cognitive issues or has passed away prior to trial. Instead, as insurance company defense lawyers are keenly aware, the jury can be manipulated into viewing the mother’s adult child bringing the case on behalf of the estate as the most important party to the case rather than the parent who needlessly suffered at the hands of the nursing home. In the earlier case, that happened to be the 68-year-old daughter Chris Kuhlman Nursing Home Case Preparation Many other jurors, however, will have no experience with nursing homes
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