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Admissibility of State Survey Results in Long-Term Care Litigation

December 4, 2017

Defense Digest, Vol. 23, No. 4, December 2017

By Leslie M. Jenny, Esq.*

Key Points:

  • Nursing homes face complicated risk management scenarios that make residents far more susceptible to injury or accident than the average patient.
  • Nursing homes are among the most highly regulated entities in health care.
  • Annual and complaint surveys by Departments of Health flow from added regulations and present damaging evidence at trial if admissible.

 

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.

Affiliated Attorney

Leslie M. Jenny
Managing Attorney, Cleveland, OH Office
(216) 912-3805
lmjenny@mdwcg.com

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