Admissibility of State Survey Results in Long-Term Care Litigation
Defense Digest, Vol. 23, No. 4, December 2017
By Leslie M. Jenny, Esq.*
|
Key Points:
|
Long-term care litigation is one of the fastest growing segments of health care litigation today. These cases can often be replete with bad witnesses, inflammatory photos and health inspection reports that are heavily damaging. These factors, especially in combination, create a hazardous courtroom scenario.
The State Survey process involves an annual state survey as well as complaint surveys. Citations are considered violations of federal regulations.
Effective management of the potential for Department of Health survey admission is crucial. Citations can generally fall into three potential categories:
1. Prior Bad Acts – character evidence – generally inadmissible;
2. Habit/ Routine Practice – probative value must exceed potential prejudice; and
3. Where a citation is issued pertaining to the care of a resident who is the subject of the current litigation.
Jurisdictions vary widely on the admissibility of surveys as is demonstrated below:
|
STATE |
SURVEY ADMISSIBLE |
STATUTE |
CASE LAW |
|
Alabama |
Unclear |
No |
Montgomery Health Care Facility, Inc. v. Ballard (1990), 565 So.2d 221, 1990 Ala. LEXIS 510 (may be admissible if contributed to injury or death) |
|
Alaska |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Arizona |
Unclear |
No |
Blackburn v. Sabino (2012), 2012 Ariz. Super. LEXIS 100 (may be admissible as relevant evidence) |
|
Arkansas |
Likely |
No |
Advocat, Inc. v. Sauer (2003), 353 Ark. 29, 111 S.W.3d 346 (finding probative value outweighs potential prejudice) |
|
California |
Unclear (testimony of investigator –yes; admission of citation - no) |
No |
Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013), 221 Cal. App. 4th 102, 2013 Cal. App. LEXIS 887 (remanded for evaluation of probative value v. prejudice) |
|
Colorado |
Unclear |
No |
Reigel v. SavaSeniorCare, LLC (2011), 292 P.3d 977, 2011 Colo. App. LEXIS 2042 (trial court admitted and reversed on appeal due to lack of evaluation of issue) |
|
Connecticut |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Delaware |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
District of Columbia |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Florida |
Yes |
Florida Statutes § 90.803(8) |
Estate of Croniger v. Life Care Ctrs. of Am. (2014), 2007 Fla. Cir. LEXIS 1149 (holding survey results are admissible) |
|
Georgia |
Unclear |
No |
Tucker Nursing Ctr, Inc. v. Mosby (2010), 303 Ga. App. 80 (probative v. prejudice); McLain v. Mariner Health Care (2006), 279 Ga. App. 410 (violation of statute or regulation = negligence per se) |
|
Hawaii |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Idaho |
Unclear |
No |
Nield v. Pocatello Health Servs (2014), 156 Idaho 802 (expert affidavit relies on surveys) |
|
Illinois |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Indiana |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Iowa |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Kansas |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Kentucky |
Likely |
No |
Carole Renfro v. EPI Corp.(2004), 2004 WL 224397 (holding surveys admissible) |
|
Louisiana |
Unclear |
No |
Satterwhite v. Reilly (2002), 817 So.2d 407, 2002 La. App. LEXIS 1217 (appears to reference use of surveys by experts) |
|
Maine |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Maryland |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Massachusetts |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Michigan |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Minnesota |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Mississippi |
Unclear |
No |
Pinecrest, LLC v. Harris (2010), 40 So.3d 557, 2010 Miss. LEXIS 392 (surveys likely admissible for notice) |
|
Missouri |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Montana |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Nebraska |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Nevada |
Unclear |
No |
Hansen v. Universal Health Services, Inc. (1999), 115 Nev. 24, 1999 Nev. LEXIS 9 (affirming trial court’s exclusion) |
|
New Hampshire |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
New Jersey |
Unclear |
No |
Ptaszynski v. Atlantic Health Sys. (2015), 440 N.J. Super 24, 2015 N.J. Super LEXIS 45 (trial court excluded surveys, not addressed on appeal |
|
New Mexico |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
New York |
Likely |
No |
Passucci v. Absolut Ctr. For Nursing & Rehabilitation at Allegany, LLC, 2014 N.Y. Misc. LEXIS 5834 (detailed evaluation of survey results) |
|
North Carolina |
Case law suggests not admissible |
|
Blanchard v. Britthaven, Inc., 2014 N.C. App. LEXIS 188, 757 S.E.2d 527, 2014 WL 636814 (exclusion of surveys upheld ) |
|
North Dakota |
Unclear |
No |
Management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Ohio |
No |
ORC §5165.67 |
Sliwinski v. Vill. of St. Edwards, 2014-Ohio-4655, 2014 Ohio App. LEXIS 4539 (Ohio Ct. App. Summit County October 22, 2014 (enforcing statutory exclusion) |
|
Oklahoma |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Oregon |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Pennsylvania |
Unclear |
|
Pennsylvania Dept of Health – statement published – statements of deficiencies and/or plans of correction are not evidence of compliance with the standard of care or admission of wrongdoing |
|
Rhode Island |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
South Carolina |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
South Dakota |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Tennessee |
Unclear |
No |
Christian v. Ebenezer Homes of Tenn., Inc. (2013), 2013 Tenn. App. LEXIS 466 (discussion of Dept. of Health compliance on survey reports) |
|
Texas |
Yes |
Texas Health & Safety Code § 242.049 |
Brewer v. Capital Cities/ABC, Inc. (1998), 986 S.W.2d 636 (finding inspection surveys admissible) |
|
Utah |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Vermont |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
Virginia |
|
Va. Code Ann. § 18.2-268.3 |
Crouse v. Med. Facilities of Am. XLVIII (2013), 86 Va. Cir. 168 (holding surveys are admissible) |
|
Washington |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
|
West Virginia |
Yes |
No |
Manor Care, Inc. v. Douglas (2014), 234 W.Va. 57 (complete discussion of the survey results) |
|
Wisconsin |
No |
Wis. Stat. §146.38 |
|
|
Wyoming |
Unclear |
No |
General management of evidence pursuant to applicable Rules of Evidence (probative value v. prejudice) |
Early identification of survey/citation issues and effective management are necessary in order to appropriately evaluate potential liability. Unfettered introduction of citations as evidence in long-term care cases are highly inflammatory and can result in emotion-based outcomes.
*Leslie is a shareholder in our Cleveland, Ohio office. She can be reached at 216.912.3805 or lmjenny@mdwcg.com.
Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.