17 Trial Lawyer • Winter 2023 nursing chart has been sanitized and has been carefully curated through electronic prompts to insulate the nursing home and hide mistakes and errors made by the staff. As such, some of your best evidence will come from nursing assistants who have left the facility. Unlike persons who choose to go into nursing school or medical school who either have made a conscious decision that they want to help others or at least are committed to a field they find interesting, the predominant care provided in nursing homes is provided by unlicensed nursing assistants or certified nursing assistants (CNAs). These folks, generally, only have two weeks or less of training. While some do have an unabating love for the elderly or the sick, many do not, and have simply taken the job because it pays $1.35 more an hour than the local big box retailer. As such, there is a never-ending revolving door of nursing assistants providing care at nursing homes with a wide variety in professionalism as to how they approach their job. Some CNAs are angels who go out of their way to make residents feel comfortable and cared for, while others one might question whether they should be entrusted with the care of a goldfish, let alone a human being. Look into the ethical rules of who you can talk to and start reaching out to these folks. Talk to your client and your client’s family — sometimes they will tell you there were one or two really good CNAs, and these CNAs may be willing to tell the truth about the abhorrent care your loved one received from other CNAs or, in general, when they were not there. Sometimes truly great CNAs will even have quit working at the facility because they didn’t want to be a part of such an abhorrent organization that neglects it residents and wanted to work elsewhere at a facility more aligned with their ethics. Sometimes residents will have roommates with no cognitive issues at all who will speak about how they watched their roommate decline through constant neglect. Other times, EMT records will document the abhorrent condition the paramedics found the nursing home in when they came and that no staff spoke with them for 40 minutes after they arrived and no one was even aware of the specific resident’s basic underlying medical conditions. Unlike the car wreck case, where often the most helpful information can be found in the police report or a medical malpractice case where it can often be found in the medical records, don’t take a case expecting that the nursing facility records will prove negligence on their own. Navigating arbitration Find out if there is an arbitration clause and whether it can be busted open. As all plaintiff lawyers know, an arbitration clause can quickly turn the most righteous, strongest and just of cases into an inexplicable defense verdict. Oregon is unique in that there is very little diversity amongst its private nursing homes. There are essentially three to five large corporate nursing homes and just a handful of independent homes offering care in the state. While your client will only have one nursing home case in their lifetime, the corporate nursing homes that operate in the state have several every year, year after year, making it tempting for the arbitrator to deliver a defense verdict or, at least, force a plaintiff down on damages to increase the chances of getting repeat business from the nursing home. Keep in mind that any business savvy arbitrator is keenly aware that the nursing home pays their fees and that if there is a large verdict for the plaintiff in a particular case, regardless if it is righteous and just, they are jeopardizing their future arbitration career. If you are stuck in arbitration, find out as much as you can about the arbitrator. Before you agree to an arbitrator, call one of us who handles nursing home cases on a more regular basis. We are happy to help, share our experiences. We share your desire for a just verdict for your client. Learn state and federal regulations Unlike medical malpractice cases, where there rarely is ever a codified standard of care and the two sides fight over what the standard of care should be, nursing homes are highly regulated. Most nursing homes accept bothMedicaid and Medicare as insurance payments. In doing so, they must agree to abide by Oregon’s state regulations as well as national nursing home regulations. The federal regulations and state regulations will often dictate the type of care that must be provided for certain conditions, with no exceptions. It is much easier to prevail in a nursing home case if you can show that the facility violated state and federal law in their care of your patient. Learn the regulations that apply to your case. Enjoy the fight In a nursing home case, after a careful review of the records and a consultation with your expert, you will know from the outset that you are standing up for someone who was neglected and harmed by the nursing facility, and that you are unequivocally on the side of justice. This makes late nights of briefing, travel away from family and weeks at trial much easier to endure. While it does not guarantee a verdict for your client, it makes getting up and dusting yourself off after a devastating loss much easier. And of course, it makes the wins that much sweeter. Chris Kuhlman is a trial attorney at Kuhlman Law where his main focus of practice is medical malpractice, nursing home abuse and whistleblower cases. He contributes to OTLA Guardians at the Guardians Club level. His office is located at 160 NW Irving Ave., Ste. 203, Bend, OR 97703. He can be reached at 541-385-1999 or ckuhlman@cklegal.com.
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