Getting What You Want in Nursing Home Discovery
Are nursing homes hiding critical information? Uncover how to navigate discovery to get the facts you need. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Suzanne Fink to talk about strategies for effective discovery in nursing home cases.
Schenk:
Getting what you want in nursing home discovery. Stick around
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode today. We are talking about the documents or rather the categories of documents that you may want to get in your nursing home cases and perhaps what to do if you do not get them, but we’re not doing that alone.
We have the fantastic trial attorney, Suzanne Fink with us today to get her perspectives on nursing home discovery and following those dreaded motions to compel. All right, now it’s time to get into the meat and potatoes of the episode, folks. As I mentioned a few minutes ago, We’re going to have a conversation with Suzanne Fink, a fantastic trial attorney.
Guest Intro
Suzanne Fink, a magna cum laude graduate from Auburn in 1984, attained her law degree with merit from Emory in 1987, where she actively participated in the moot court team serving as a blue and gold officer for the United States Naval Academy. Suzanne transitioned into law, practicing defense law, and as House counsel for State Farm.
Since 1997, she has been of counsel at Lori Chance four lines, Carter and King dedicating her practice solely to nursing home abuse litigation. She is just the most recent guest from that prestigious nursing home abuse law firm. And we are so lucky to have her talk to with us today. Suzanne, welcome to the show.
Fink:
Thank you, Rob. Nice to be here.
What are the 5 must-have document categories in a typical nursing home case?
Schenk:
Man. I was just telling this, I was talking to you about this before we started recording, but I’ve been wanting to have this conversation with you for a long time. You specifically, but your firm is fantastic. But you like you, you’re a legend to me as far as I’m concerned in terms of chasing down nursing homes for documents.
And we’re going to get into all of that, but I wanted to start off with just a general question, which is to say what are the documents? that you would say are critical. What are the must have documents in a nurse and a typical nursing home case that you want to get?
Fink:
There’s a lot of documents that you need to get to prove your case, but if I had to break it down into four or five categories, and ironically it’s the documents we always end up arguing over and ending ending up filing to a motion to compel, but.
Category one would be the policies and procedures of the nursing home. You cannot get those precede. Our expert always wants those. You need to know whether the nursing home, for example, in a wound case had policies about prevention of pressure injuries and how they stage pressure injuries. Because 99. 9 percent of the time when you go and depose the treating nurse, at the facility, they haven’t followed those policies and procedures.
So you definitely need to get the policies and procedures to wound case, obviously skin assessments. prevention, fall cases, fall risk. It just is case specific, but obviously you’re going to know what policy you need. Oftentimes they’ll fight that because they’ll claim it’s some sort of business document.
It’s, protected by some business theory and it’s not at the end of the day. It’s just not, and you’ll be able to get it. I’ve never had a court deny me a policy and a motion to compel. So that’s category one. Category two would be the personnel files. Certainly of the treating nurses, the names you see a lot in your client’s chart, the administrator, the director of nursing.
There’s no doubt in Georgia. Those are subject to discovery. You’ll get pushback, but you’ll win on that as well. And within the personnel files, you need to make sure that they’ve given you whatever training that particular individual may have had as well as write ups. Issues at the facility and whatnot.
So that’s the 2nd category we get. Bar none. The third would be the training and by training. Not only the sign in sheets for the training, but what training did these nurses have in whatever category case you have? For example, I keep going to wound because that’s what I see the most is pressure injury cases.
But what training do they have for the prevention of wounds? How often are they doing this training?
Schenk:
And when and not to interrupt you, but when you say training, you’re not talking about like the schooling or whatever they needed to get their certification to be an L. P. N. You’re talking about in services, right?
Fink:
As lawyers and as lawyers, we have to do continuing legal education training. We have to go get our hours from the state bar and then a doctor has to do training. Nursing homes 90 percent of the time have in house training of their staff all the ways from the C. N. A. S. Up to the D. O. N. S.
And the training can encompass a wide array of things. But depending on what your case is, you want to see whether they’re training them and updating them with the newest standards. And a perfect example is, in the pressure industry world, those standards changed a few years ago. And I found in a lot of my cases that the nurses didn’t even know that.
Schenk:
Which, helps your case, right?
Fink:
If they’re not up to date on the newest, latest and greatest, standard of care for a wound case, but training would be the sign in sheets, the documents used by the facility. In other words, did they put up a PowerPoint where their photos used in the training?
Did they hand out brochures? For some reason, I’m getting a lot of pushback on this lately, and I’m not sure why, because again, there’s no question it’s discoverable. And relevant certainly the discovery phases. So that’s category 3. Category 4 is the big 1 that we get the most push back in.
And I’ve never ever had any defense attorney say, sure, here you go. It’s the other resident records slash other resident incident report category. And, I found in speaking on this issue in other states that other states. The law is obviously different, but attorneys don’t even think to request that.
And let me explain to you why we request that. More often than not, Rob, these facilities have a chronic issue, whether it’s low staffing, failure to train, call ins resulting in people not showing up. But, People are hurt at these nursing homes for a multitude of reasons, but what it usually comes back to is a chronic, ongoing issue.
The nursing homes aware of whether short staffing and proper training, whatnot, when you get a set of resident records. with a similar injury like your own client and you see the same lack of care, you can develop a case a to show that they didn’t give a rats, you know what about what was going on in the facility and they didn’t try to fix it.
And not only did your resident end up dying from this injury, but 20 other residents ended up dying from this injury. Not only is that discoverable, but that’s admissible at trial. The pushback you’re going to get from other resident records and other resident incident reports for similar injuries is obviously they’re going to claim HIPAA, right?
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Fink:
They’re going to claim irrelevancy. What happened to Joe Smith is not relevant to what happened to your client. They’re going to claim peer review medical review. They’re going to throw everything but the kitchen sink and their objections. But I will tell you, We have never lost on emotion compel on this matter ever.
Schenk:
Let me ask this. Cause I’ve read quite a few of the orders that you’ve received on these motions that you’re filing. And it seems to me a couple of these are, or I might be wrong about this, but you’re not wanting the nursing home to literally give you the entire file. They’re not, is it, do you seek specific documents?
And we’ll just say with the wound case, for example, like you’re not wanting, everything from every resident that had a pressure wound. Are you just, we just give us the MDS, their assessments and their care plans or literally, are you wanting the entire file for the residents?
Fink:
Let me tell you how we do it and why we do it this way.
We will pick a time period, usually, a year before the admission to the resident’s discharge. We’ll start with a broader time period and we’ll start with a broader request, which we’ll literally seek. Please produce all files of other residents during this time period who developed a pressure injury and or the worsening of a pressure injury.
Now, what we’ll get is, oh, goodness gracious. That’s unfair. That’s too broad. My goodness. Gracious. In the spirit of discovery. And as evidence to the judge how reasonable we are, we will narrow it will narrow the time frame to maybe 6 months before 3 months before our client went into the facility or develop the pressure injury and will narrow it to a certain set of documents and those documents, for example, in a pressure injury case would be the orders for treatment, the treatment administration record, the any skin assessments or skin records, whatever that facility there’s every facility uses a different term. You gotta be careful. Progress notes addressing any kind of wound or skin injury. So we’re always willing to In the spirit of discovery to narrow it to a reasonable time period in a certain set of documents. And you’ll see in some of my orders, the judges, even we will propose to the judge, look, judge how reasonable we are. We’ll take the minimum data set, the orders, the progress notes, and the skin assessments. How hard is that?
Schenk:
And I feel like even today, I actually had to write almost a 60 page 6.4 letter, which is in Georgia. That’s our meet and confer requirement before filing a motion was about 60 pages. But that’s one of the things is that look, I understand like they’re making the relevance argument, which in Georgia, we have a good case on point for that. I understand the HIPAA argument, which again, I think is a winner.
But in terms of this is just too much. We’d have to have 15 people go in and no, like if it’s electronic medical records now, you can search literally search for residents that have this, like it takes two seconds. Like it’s not, I guess what I’m trying to say is it doesn’t seem like the overly burdensome or unduly burdensome argument really works anymore.
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Fink:
No, but you’re still, you’re right. You’re still hearing the overly, overly burdensome harassing, typical boilerplate objection, but judges simply aren’t buying it. A because we have a more records. We have electronic medical records now that is a stroke.
Correct. And be sorry. Not sorry. You killed our client. I’m sorry. It’s burdensome. I’m sorry. You demon is harassing. But maybe if you’re taking better care of our client and the 40 other people that we’re aware of based on your wound logs, we wouldn’t be having this argument. Life is tough.
You brought this on your side.
I’m telling you, judges aren’t buying it anymore. They’re just not. And let me throw in. So I’m clear because I’m grouping the other resident records with similar injuries. We do a separate request for incidents slash event slash changing condition slash S. B. A. R. Reports because What I find Rob is often we don’t get a lot of pushback with that.
We rarely do. For example, I have a fall case now where our poor lady felt like 3 times in the 4th fall resulted in her dying shortly thereafter. We got a fall log. They didn’t want to give us the other resident records. of falls, but they gave us the fall log. We have 80 something falls in the three 80 something residents that sustained serious falls in the three months before.
If you have that and you go to a judge to argue, we’re entitled other resident records. There’s I haven’t encountered a judge yet that says certainly not. There wasn’t a problem there. So that’s why you want to work hand in hand with these categories because it’s
Schenk:
And I think it’s important not to cut you off there.
I think it’s important too, because at least in my experience they’re going to say that the incident report, changing condition report, event report S bar are not a part of the records. So when you ask for records, we’re not giving you those. So that’s why, at least for me, of course, I steal everything from you guys, but at least for me that’s why I separate those categories because I get that argument of Rob, the incident report is never part of the chart, like that’s, we don’t include that in there, so it has to be.
Fink:
It always make it a separate request because it is a separate document. It may or may not be part of the chart. The SBAR, the situation is the notification to the physician usually is part of the residence chart. And the other thing you need to keep in mind, you’re always going to draw these objections of HIPAA. And I even get attorney client objections for other resident charts. I’m like, okay, dude, Come on.
Schenk:
No I got that. Not in this one. I wrote yesterday, but I think a few weeks ago and it’s man you can’t just make objections. You like, what’s the factual basis? Are you a crazy person?
Fink:
It just helps you Rob to look good in front of the judge because the judge is you’re going to sit down and you’re going to write your motion and you’re going to say that the ridiculousness of defendants position is evidenced by an attorney client privilege objection to. A medical chart.
They’re not in any world. Is that protected by attorney client? And we just argued a motion, a wound case against a hospital this week where they’re claiming some sort of peer review for the audit trial.
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Schenk:
Oh my goodness.
Fink:
You just, you got, keep it basic. You’ve got categories of documents that are gonna prove your case. It’s the categories that we are just not going to not fight for.
So that’s categories. So I’ve done the policies and procedures. training, personnel files, other resident records and logs, fall log, wound log, depending on what your case is. And in the fifth category, I really thought hard about this because we do get a lot of other documents like time cards that are extremely important.
But I have found that the, when you ask for a resident counsel, minutes. Not if everyone knows what those are. But resident council is a group that meets in a nursing home by law. They have to have them. And it gives the residents and their families a choice, a chance to air their grievances and their concerns.
And I have found if you really take your time and go through these documents, they’re gold. Because back to a one case, what I find is a lot of Found my mother soiled in her diaper, had to bring diapers to the facility brought to the attention of the resident council or in a fall case, a resident says, I can continually ring my bell for help.
And no one ever comes because these are the things that show in a fall case, no one ever comes when you ring your bell and we see all these falls or a lot of falls occur when someone finally gets up and says, I got to go to the bathroom, even though I need help and they fall going to the bathroom if no one’s answering the bell, that helps your case.
Schenk:
Exactly.
Fink:
If mom or, the roommates always in soil diapers, right? Or the family had to bring diapers, the facility that helps your case in a wound case because we don’t have a dry resident. So resident council minutes, you need to make sure that you ask for those. I don’t usually have to compel them.
Sometimes I do. But once we make the argument that it’s clearly relevant for these reasons, they usually give in on that.
Schenk:
Sure.
Fink:
It’s hard. It was hard to come up with four or five categories because this is gold like you’re right. This is this. I know this. These are things that I asked for every time,
There’s other things you’re going to have to ask for. But if I will tell you this, I will not go take a wound. I will not go take a wound nurse deposition. Without these five categories of documents.
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What documents do you need before you take a deposition?
Schenk:
Okay, hold on. So that’s actually that’s a good segue because that’s what I want to ask you now. So for me, sometimes, and I’m actually having to rethink this strategy because it’s prolonging my cases.
But typically what I would do is I file the case, I send my discovery, and I also send a notice of 30B6 deposition for just documents. Essentially, it’s the Kozarowski method of who has possession of this document.
So in other words, I can get on record and defeat all the objections they’ve made in terms of peer review and all that kind of stuff. But the problem that I have had in the past couple of years is that it takes three months to schedule the 30 B six doc deposition document, document deposition, and I’m not taking any other depositions.
So I guess my, all that long winded to be said, what is your perspective on. Do you wait to start deposing people? Do you what documents do you have in hand before you start? Or do you, does it matter? What’s your typical?
Fink:
You’re never going to have. If you’re trying to keep up with the discovery deadline, you’re never going to have other resident records in time to start taking nursing depositions.
You’re just not. You’re just not because you got to do. You got to send a discovery. They give you the B. S. answers of will supplement you do your 6. 4. They supplement a little bit. You still don’t have the records. You do another threatening letter and say, then you got to prepare the extended 60 page motion to compel and briefs that you’re talking about.
Okay. Then you got to wait for their reply. Then you got to wait for the court. You’re just not going to have other resident records. At a bare minimum, a wound nurse, a treatment nurse. A nurse that was involved in the fall, I’m going to have their personnel file policies and procedures. And a wound log or a fall log, and I will tell the defense council that.
They are impeding discovery. I’m willing to let the court decide on these bigger issues like other resident records. But I need to keep this case moving and I want to depose the treatment nurse and I want to depose the director of nursing and at a minimum, these are the documents I need.
And usually it works. Usually it works. If you wait around for every document, you’re going to get in a motion to compel. You’re never going to get a deposition taken until that’s me.
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How would you describe you requests (laser focused, medium, shotgun)?
Schenk:
That was me. Like I was doing like I was like, okay, I want to get every single objection obliterated father, the dope motion to compel and then they end up giving me the documents before we even get to the hearing and there I am six months later.
Fink:
You’re living in la land.
Schenk:
Okay. But now, but see, this is why this podcast is fantastic. Okay. All right. So let me ask you this.
Fink:
No, let me add to that. Not to be interrupted. Let me add to that. You got to figure out who you want to depose based on your case. Because it’s going to be different in every case and in a wound case, the first person I’m going to want to depose usually is the wound nurse, the treatment nurse.
I know other people depose the lower level first, but I just find getting right out of the fat, getting the wound nurse to admit they didn’t follow policies, getting the wound nurse to admit the staging was wrong. I don’t think you need a lot of other depositions at that point, but if you’re deposing a D O N, it might be a different set of records that you need.
It might be more of an administrative attack or a global attack on the running of the facility.
Schenk:
So you don’t like budgets and things like that.
Fink:
And that was the sixth category was the financial information, because that is important for the global ish case, but it’s not going to be important for a treating nurse, a wound nurse.
Read Guide on the relevancy and discoverability of documents.
Schenk:
Oh, sure. Yeah. You’re not going to show a CNA, Hey, what do you think about these budgets?
Fink:
No it’s the D O N is a different issue. And that usually comes later in my cases. I want to get the care down as substandard out of the mouth of a nurse. before I started attacking, the way the facility was run and staffing and all that.
Schenk:
Okay. So then tell me about this then. Some people might have a request that something like, give me every single one of your policies and procedures. Some people might be like, I want policies and procedures related to the injury only, or whatever. In other words, how Laser focused are your requests. Like what typically how are you, cause you earlier described I want everything in terms of timeframe or whatever, then I whittle it down, or do you start?
Fink:
I do. There’s a great solution to that dilemma. There’s two requests. You ask for all policies and procedures related to wound case, skin assessment, brain scoring, prevention of pressure injuries treatment. Okay, then you have a separate request that asked for the table of contents for the facility. That way you get the policies, will be relevant to your case. And then you get the table of contents. You make sure you don’t miss anything. You go through the table of contents and maybe you forgot to ask for nutrition and hydration.
What we’ll do is we’ll ask for the relevant policies that we know are everyday out there, fall prevention, things like that. But then we get the table of contents and depending on the facility. There might be a whole nother, category of documents policies. We didn’t even think of or we were unaware of depending on the facility.
Schenk:
So let me ask you this because this is actually like now that you mentioned that maybe I’m in the wrong here, but I laser focus my positive procedure questions. This is what I want. This is what I want. This is what I want. sometimes when they come back and go, we’ll show you the table of contents and you just pick what you want.
I don’t, I get, and I could be wrong. I would love your opinion on this, but I get mad at that because man, I don’t know what the substance, if it says nutrition or whatever, I don’t know if what I want is a nutrition or if it’s in, dietary or whatever and I don’t want to have to just tell you that I want everything.
You tell me what the policy is.
Fink:
But here’s the problem with that, Rob. Every policy is every facility is different the way they term things. And I’m going to give the benefit of the doubt the defense attorney call me crazy after 37 years of doing this, but it may be that he really doesn’t know what specific policy it is.
You’re seeking. I have them do that quite frequently and I’m happy to say, okay, I’ll highlight what I do as I take my Adobe and I use the highlighter and I highlight everything. I send them an email and say. Okay, to confirm as requested, here’s what we want. And we want it by when the, the discovery is due and it hasn’t really been a problem.
But I do, back to your point, I do have 2 separate requests and I can, some are pretty clear. You would hope now I just have a case where there’s no skin and there’s no policies regarding prevention of pressure. And I’m like Okay, cool. That only helps our case,
It’s in the two requests, see how they respond.
If you think they’re playing games, get mad. If you don’t think they’re playing games and the table of contents does show it’s a little different verbiage than then work with them.
Schenk:
I see.
Fink:
Cause you’re going to catch more flies with honey.
Schenk:
I feel like I’m too nice, but okay. Excuse me. Okay. I’ve never been told I’m too nice.
How do you approach meet and confer obligations?
Schenk:
Here’s me, like, when I think of Suzanne Fink, it’s like this and I hate to go Star Wars on you, but there’s a bounty hunter named Boba Fett, and he’s a famous bounty hunter through the whole galaxy, and he has little braided pelts on his shoulder of all the Wookiees that he’s killed, and that’s what I think about you, is you have a whole bunch of Wookiee scalps.
On your shoulder, which are the orders from the motion to compel that you filed that you’ve just accumulated through your career And I think you’re the Boba Fett anyway So let me ask this in the last few minutes that we have typically What is yours and speaking of deference to the opposing council?
What’s your? What is your kind of system? What’s your perspective on when do you file the motion? How much leeway do you give them? How much time do you give people like, Hey, I wanted to pose this person and I’ll give you two weeks, or is it, I’ll give you a month to give me a date, or I want this document if you don’t have it by tomorrow, like what is typically your perspective on that?
Fink:
It I’m very shockingly. I don’t know if everyone in my firm would agree with this. I can be very patient up to a point and then up to that point. I just opened up a big old can of whoop ass because I’m done. The way it works for me, the minute their discovery comes in within a week or so, I’m going to review it.
I’m going to figure out what they haven’t given me, and I’m going to get a 6. 4 letter out.
Schenk:
Okay.
Fink:
Because you can’t let it, you can’t, we’re all busy, but the longer it sits around, tick tock, that six month discovery clock, tick tock, and some judges aren’t real amenable to extending it, right? So I’m going to get that 6.4 letter out, then I’m going to get a response from them, and they’re going to be whining and moaning and, give me more time. The facility, I’ll give them a little more time. And because we all work Rob, we all work with the same firms, right? For the most part, there’s two big defense firms in Atlanta.
That I’m getting this from.
And we’ll have the conference. And to this point, I want to point out to the young lawyers out there that may be listening. Always check the court. Some courts have standing orders about you are not allowed to file a motion to compel until you’ve called this court and you’ve had a conversation with us.
Always make sure there’s no outstanding order or rule by your judge that you have to have some sort of conference process. Either with the court or whatever before you, you let the, let all hell break loose with emotion, right?
Schenk:
Because that’s how at least in Georgia, that’s how it works for everybody outside of Georgia is that you have to have a meet and confer at minimum telephonically to, to go over what the problems are.
Okay. So you write off the bat within a week of getting discovery, you’re sending off your, and we’re saying 6. 4 for everybody outside of Georgia. That’s our meet and confer letter. You’re sending a meet and confer letter saying this is what you, we think you did wrong. They, you give them a week or so to respond to that.
Fink:
I give them, I’m reasonable Rob let’s, because this is something I’m going to put in front of the judge later on. I give them three weeks. I give, I do a 6. 4 and I said, you have three weeks to supplement and if I don’t hear, I’m happy to discuss this with you.
By the way, here are, 30 orders where these very issues and 10 of them are with your firm and five of them are with you. And two of them were in front of the same judge, but okay, the orders on these very issues, I give them three weeks because when I go to the judge later on, I’ll say your honor, look, I gave them plenty of time to supplement and they didn’t supplement.
And your honor, I even narrowed six of these requests. Look how reasonable we are. But I’m pretty, I am known as the lawyer on these nursing home cases to keep the cases moving because I have a little bit of OCD on this, but if you keep it moving, you’re going to know, you’re going to know when that defense lawyer is just full of, what, right?
Fink:
You will know when you’ve had enough. And that’s when I just follow them. I start working on the motion to compel and I don’t send them a copy and say, I’m going to file this. I will say after 6. 4 and a chit chat and I’m getting ready to file a motion to compel and that’s it and you file the motion to compel they have 30 days to respond and I will guarantee you before those 30 days are up after you file your motion to compel you’re going to start getting supplement.
Inevitably, they’re going to start supplementing because they don’t want to look fool in front of the judge either. And it shows the judge that you’ve been reasonable. You’ve given them time. They’re still withholding documents. You’ve given them, my goodness, you’ve given them an outline, you’ve given them a template where this has been, brought before this very court before.
And so you’re in a great position at that point, but no, I, suit’s been filed.
Schenk:
Wow. That’s I gotta, I can only aspire to those things. Yeah.
Fink:
In a perfect world, we’re all busy. The problem is no one likes doing this. It’s tedious. It’s boring. It’s redundant. But I will tell you at the end of the day, it’s the way you get the value of your case.
Up up. Especially if like you’re on a mediation calendar and we have a mediation schedule for June and we’ve got all this outstanding discovery with a firm I will not name that we always have. Most of these orders are with. And I said, you can let your claim rep know that if mediation fails within a week, we’re going to be filing this and we’re going to seek attorney’s fees because y’all knew. You knew.
Schenk:
Yeah, especially you, Suzanne, who has the wiki pelts, so many wiki pelts. This is, yeah. So this has been the fastest 30 minutes that I’ve ever had a conversation with some on this show. I think no, this has been fantastic, Suzanne. Thank you so much for coming on and sharing your perspective.
I really appreciate it.
Fink:
It’s been fun. Always fun to see you, Rob.
Schenk:
Thank you. Folks, I hope you found this episode educational, perhaps even entertaining. If you have a suggestion for a topic that you would like me to discuss, please let me know. If you have an idea for a guest that you would like for me to talk to, please let me know that as well.
New episodes of the nursing home abuse podcast come out every single Monday, wherever you get your podcast from. You can also watch the podcast. That’s right. You can. Watch our smiling faces on YouTube or on the website, nursinghomeabusepodcast. com. And with that, folks, we’ll see you next time.
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