How to Effectively Depose Nursing Home CNAs?
Deposing CNAs can make or break a nursing home case. Knowing the right questions to ask is key to uncovering the truth and ensuring justice. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Victoria Schall to talk about how to effectively depose CNAs and what attorneys should focus on during these critical moments.
Schenk:
Strategies for deposing CNAs in nursing home cases. Stick around.
Hello out there. Welcome back to the Nursing Home Abuse Podcast. My name is Rob. I will be your host for this episode. We have a fantastic episode for you this week. We’re going to be talking about the role of the CNA in a typical nursing home strategies and just information about deposing CNAs.
What are you trying to get out of them? What admissions are you looking for? What documents maybe do you want to look at beforehand? These types of things, but we’re not doing it alone. We have a real professional nursing home abuse, trial lawyer, Victoria Shaw will be doing, joining us.
As I mentioned, we’re going to be talking about deposing CNAs and all the things that entails, but we’re not doing it alone. We have the fantastic trial lawyer, Victoria Shawl, a New Jersey Supreme Court certified civil trial attorney.
She’s dedicated her career to advocating for the elderly and nursing home residents. She has litigated nursing abuse and neglect claims since 2010. Victoria holds a certificate in adult development and aging and has volunteered in various care facilities. She previously served as an elder law staff attorney and is licensed to practice in New Jersey, Pennsylvania, Virginia, and the district of Columbia.
Victoria has her own show, just like I do. She’s got her own show called advocating for the aging, which you can find on RVN TV. And we’re so excited to have Victoria on the show. Victoria, welcome to the show.
Schall:
Good morning. It’s great to see you. How are you?
What is a CNA?
Schenk:
I am rocking and rolling. I cannot complain. I’m so happy to have you on the show. You’re not only a fellow nursing home lawyer. You’re also a host of a show. And I mentioned this briefly in your introduction before you came on, but I actually wanted to have you talk for a about your show. And that show is advocating for the aging. Which is on RV and TV and we’ll have a link in the show notes so that everybody should go and check it out it’s every other week, but if you could just shine a spotlight on your program really quickly, Victoria.
Schall:
Sure. It’s called advocating for the aging and what I’ve done is they reached out to to host a television show. And I try to bring in experts from all over the areas of practice, not just nursing homes, assisted livings, but also within the community elder people that are speaking about elder fraud elder abuse in the community in facilities experts.
that are doctors, nurses, the ombudsman working on trying to get somebody from the department of health to come on. But the information is so critical that, to understanding the industry, because I think, as and I know oftentimes people are coming to us because they don’t, they find out about the industry a little too late.
And then something’s already happened and they didn’t have that opportunity to be able to better advocate for themselves or their loved ones.
What role does the CNA play?
Schenk:
Fantastic. Now you’re a guest on my show. Yeah, it’s going to be great. So I wanted to have you on your you walk the walk, like you try cases, they’re nursing home abuse cases.
And one of the things that I wanted to delve into, which I haven’t done on this podcast before is the, how, A CNA might play a part in the evidence that you might have for nursing home abuse on behalf of your client. So the first question, just the 40,000 foot view question, which is, what is a CNA and what role does A CNA play in the nursing home?
Schall:
A CNA is a certified nursing assistant. Oftentimes they can get. There’s certification by doing courses, general courses within the community. I think a lot of community colleges offer certified nursing assistant certifications that they can get. And what happens is oftentimes why they’re the best.
the, to me, they’re the crux of the case outside of a director of nursing or somebody in administration to really talk about how things got screwed up from an administrative perspective. The aides are really the people that are providing that hands on 24 7 care to people. However, they’re also the ones who are most understaffed.
under trained and underpaid. You find people that, that reach a certain burnout on trying to provide care in a system that isn’t set up for them. I’ve often been asked, do you sue nurses and aides? And I never sue nurses and aides. I only go after the facility and then I really go after the administration because when we’re talking about it, those are, they’re also, they can often be the victims of the system itself.
So that’s what a CNA in a grants perspective means to me. I think they’re also really important because like I said they’re the ones providing that hands on care. So you want to know what they know as much as you can. Before it often became really difficult to get CNA logs.
So what happens in a nursing home case is they don’t typically write in a residence chart typically, right? So when we’re evaluating a case, and let’s say we’re looking at a pressure ulcer case and one of the crux things for a pressure ulcer case is turning a repositioning, right? It’s the cornerstone for prevention of wounds.
And the aides are the ones who are doing the turning repositioning. So how do we know what was done and what wasn’t done if we’re not able to see what the aides Say was done and not done. So years later, we’re going back and trying to figure that out. But when, when we changed over when a lot of the cases have changed over to now using something, a database system called point click care or some other sort of computer generated documentation system.
They’re the ones having to document that the activities of daily living. So the bathing, dressing, cleaning, turning, repositioning, feeding, all those sorts of things. They’re the ones who are now documenting that information. So it’s really helpful to us to be able to see that from one perspective or another.
Did they do it? Did they not do it? Did they lie about it? All of those things are going to pop up. And those are the ones that that, like I said That’s why they’re the most important people because we’re seeing what they’re doing on the hands on perspective.
Do you name CNAs as defendants in typical nursing home cases?
Schenk:
I think it’s a common misconception, at least with some of my clients, that everybody that walks in that room is a registered nurse and that the registered nurse, the registered nurses are doing all the heavy lifting, which is, as you mentioned, is absolutely not true.
It’s in some of my cases, it’s basically 90 percent of the times that resident has been touched by somebody at that facility, it’s a CNA. Okay. Okay. And they’re not doing assessments. They’re doing what you have described, which is the activities of daily living is your pillow propped up?
Are you being, turning repositioning, toileting helping with transferring all that kind of stuff not the critical nursing care. So I feel like a lot of people don’t really understand that the CNA are the, as you mentioned, the cornerstone, like they’re doing a lot of that heavy lifting.
You mentioned a second ago about how you wouldn’t name a CNA as a defendant. What are maybe some of the broad reasons why you don’t do that?
Schall:
Number one, I think insurance. So they’re typically covered under the facilities insurance. So it doesn’t, I’m not getting any additional insurance plan by suing them individually.
And then the other issue is, from a trial perspective, I, if they are, gosh, they may have separate counsel and then they’re sitting at a counsel’s table as an actual defendant. And from a trial perspective that’s not something, again, I, I’m trying to show that they’re the ones that are really Also, in addition to my client being a victim, that they’re also victims as well of the system that they’re being placed in.
So I don’t want to place another victim at a counsel’s table in front of a jury. That’s just not that’s not the, to me, that’s not the right trial strategy for handling these cases and really trying to help a jury to understand. What happened here? So those are the main reasons. I have that being said the only time that I really have sued an actual aid, a CNA or any sort of nurse is if there’s been an actual physical act by that nurse or that aid, intentional
Schenk:
violence or something.
Schall:
Yeah. A sexual assault, a physical violence. I had one where a resident was this is horrible to say, but a resident was beaten in his own face with his own soiled diaper that an aid, but right. And then he ended up passing away. He was a very happy, lovely man.
And I think the trauma of everything that he went through he went downhill very quickly after that. It’s one of those questions of do I not right, but sometimes again from an insurance standpoint, you also have to consider whether there’s an insurance exclusion from many of their policies for intentional acts.
So that’s that it may have more of a legal reason is to, to doing it than it does to an actual, any other reason for them being named or not named.
When is a CNAs testimony important to your case?
Schenk:
So we have a case against the nursing home. And you’ve now made it into your discovery phase. Are you deposing the CNAs?
And if you’re deposing the CNAs, typically in a typical case, what information are you wanting to elicit from them?
Schall:
Sure. I know, I’ve had a number of conversations with my colleagues and, We’re all falling down at this point of should we even do this, do, other people, really all I need is the director of nursing or somebody in administration that, that handles a lot of the other things that are going on.
However, I do think that they are important to your case but you gotta make sure they’re, honestly related to your client in a particular way. So I’m selective about who I choose, right? So if it’s a, if it’s a fall case and an aid, I want to, I would want to, you Try to get the aid that either found that person in order to try to get additional facts about how they found the person because oftentimes the investigation that this that the facility does isn’t really thorough or that the notes that we have isn’t really thorough and I want to be able to lock them in on what they say they, they did or say happened or how they found that person.
I think it’s important as I always end up saying, it’s like a lawyer answer, but you’d really have to know your case when you’re handling these cases, you really have to understand your case and understand it from a hands on ground kind of perspective.
thought process. So there may be a case where I don’t necessarily feel I need to take an AIDS deposition. But nine times out of 10 I definitely am because, I really want to know what’s going on there. What really, what’s really happening at this facility? And how are the people who are providing the most amount of care to someone, how do they feel about it?
So my depositions of them are generally not, I try not to be adversarial. Obviously often, they feel that they, I think they feel that it’s adversarial because there’s a defense attorney and they’ve, there’s an action that’s been brought against, the facility itself. But what’s really helpful I had another colleague hate to go this direction, but I know their colleague that also had said at one point in time, they really don’t know anything.
And I said isn’t that the point? That’s also the point about taking their deposition is the people if they’re going to turn around and say we did the best that we did everything we could. But the people who are the hands on people don’t know anything about anything, then what, what’s really going on there, and I think that’s a missed opportunity if you’re not taking somebody’s deposition or, because you feel they just don’t know anything.
The other point I will say is I’ve gotten some great information out of. CNA’s testimony, particularly when it comes to falls or turning a repositioning and, and pressure ulcer care and treatment or I think when it comes to Falls I’ve had situations where they don’t even know how to define a fall.
Or at least they’ve, as in the deposition they don’t know how to define a fall. And give you an example of there was a matter I handled where a resident was had psychiatric issues as well as, Um, needed physical assistance as well as psychiatric issues. And most of the time, the staff of the facilities are not trained.
They’re only trained as to maybe trained to handling dementia, Alzheimer’s, those sorts of mental cognition status issues. They’re not trained to handle, bipolar, schizophrenia all that sort of stuff. They’re never trained on that. This particular resident had some mental health mental health issues, would get up in the middle of the evening and would strip down.
And instead of training the staff to walk the person, from front, stare them face to face and try to talk to them through it the aid had gone behind this resident and tried to push her back to bed. And in doing so when she, right, when she pushed her back to bed she ripped away from her scared, obviously fell to the floor and had multiple fractures.
The aid not knowing what to do, picked her up, put her back into bed, pulled a sheet over, and then went on without telling anybody anything that happened. And she was found, however many hours later in, in extreme amount of pain. The case itself, it’s, you have the fall, but then you also have the cover up, but you also have the facility and what did they do to try to train this particular staff member about this?
And she tried to say in her deposition that she didn’t fall and I was like okay let’s get to this. My resident was in a standing position and then she was on the ground. What do you call that? Like, how do you define that? And did that ever change for you after this happened? And Oh yeah, I finally was trained and they told me that it was a fall and
Schenk:
wow.
Schall:
Do you see what I’m saying? You can get some insane tidbits out of people, but you got to help them get there and to help them to understand, that this is not, you’re not coming after them. You’re trying to really understand what happened to your residents.
I know that was a long winded answer to your question, but I do take them. I think that they’re very important and I think that they can provide valuable information if you really know how to guide them to get there.
What documents do you like to have before deposing CNAs?
Schenk:
Is there do you have a particular type of rule? Like I’ve had attorneys on the show that will say, I only care to have the personnel file, the policies and procedures and obviously the chart and I don’t need anything else.
I’m not going to hold it up and I’m going to take the depo. Is there any tip in a typical case? I know every case is different, but is there a certain document that you typically are going to make sure that you have before you schedule the depo of a CNA?
Schall:
That’s a question.
Yeah. Yeah. Look, I, AIDS are different, right? Because again, they’re not generally documenting in the chart. So obviously if I’ve asked for them, they’ve shown up somewhere, right? So I, I want their sections of their, of the chart, but I also want to have. Anything that might conflict with their testimony.
Also, if you have any state surveys I was just talking with somebody else recently about surveys and they were like, how do you get surveys in? And I was like why do you want to get it in? Did you not? Get the information from the survey through the people that testified, right?
Because what will happen sometimes is the state survey may, the state surveyors may go in and investigate what happened to the resident. And then if they find a citable offense through the violation of the state or federal regulations, like the ones behind you, the federal regs behind you, there you go.
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Schall:
If they find a violation of those state or federal regulations, they’re going to include all the people that they talk to, right? And they’re not going to list them by name, but there’ll be CNA1, CNA2, LPN2, right? RN1, DON. So you want to find out who those people are and, that, that’s also a document that you’d want to utilize in order to get facts out, right?
Because I’ve had situations too where they go in to testify about what’s in the nursing home chart, and they’re saying one thing, but they told the state survey or something else. At that point in time, you have to call in to question the veracity of what they’re testifying to.
And again, you’re really just trying to get to the heart of the matter of what happened, but you could end up getting, some great, for your case, a great conflicting testimony from what they may have told a state surveyor, which, is done under penalty and, and then in testimony in court, which could also be perjury as well.
If you want to make sure that you’ve gotten your state surveys that you’ve reviewed them, the policies and procedures for me they’re more important for a director of nursing or an administrator or somebody in an administrative position. I, look, oftentimes I, I may even take a deposition.
In a nursing home case and not have the policies and procedures yet, right? Because one of the things I think you need to do in handling these cases to really understand the regulations and understand the basic nursing standard of care. And if you understand those things, if they have policies and procedures that don’t match that’s a bigger problem, but that’s an administrative problem.
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So from a CNA perspective, I don’t absolutely need to have the policies and procedures there with me beforehand. I’m more looking for. What happened with my resident? What’s going on in this facility? Do you like it here? Like one of the questions I always ask in a deposition Of a CNA and it doesn’t have to do anything to do with the documents is you know?
Why did you come to work here? Why did you come to work here? And I’ve gotten some insane answers to that question. Oftentimes one of the questions I also ask is, what is the purpose of operating these facilities? What is the purpose of having a nursing home? And without fail, you get most of the time, the answer is to help people care for people who can’t care for themselves.
right? Something along those lines, a good human answer. I will tell you, I end up getting answers from people that are like, look, there was a job opening and I took it. Okay. Do you even do you talk to the residents? No, I don’t. I just have a job to do. So I get in and do my job and get out.
Okay. It’s going back to that whole human factor and I’m not trying to prove my case necessarily through an aid, but you’re setting that stage for the systemic issues that are going on in that facility.
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Schenk:
This is why I love this podcast. Like this is something that I’ll, I learn something every week and that I’ve never considered asking such a question to anybody like, Hey man, why’d you even take this job? Like I’ve never asked that in my entire life. And I guess from what I hear you say, you get some good, you get some good admissions from that.
Schall:
It’s just bonkers. You know what you can get sometimes with people saying, why they, oftentimes you’ll also get look, this is, I’ve had situations where it’s backfired too.
But I’d rather have that question now than have them get on the stand. And then, defense attorney’s asking them that question. question, right?
Schenk:
And it’s Oh I’ve took care of my grandmothers and like I’m lovable and they’re an angel, right? Yeah. At least get it out.
Schall:
I want to know the answer to that question.
I, and I’d rather do it in deposition because I’ll tell you, there’s also, it was a case that I handled where staff testified when I asked those questions, you were like, I was on a wait list to come and work here. This place is amazing. And you’re like, Oh wow. Okay.
Schall:
But you want to know that, right?
And and it wasn’t just that one person. There was a list of people that was, this place is amazing and I love working here. So I don’t be afraid to ask the question, but always follow up with I think for me what I learned in handling these cases was obviously, early on, I had, we all have outlines right to try to help us because when we’re doing depositions you’re not, you don’t know everything that you want to be asking.
But step away from that outline every now again and ask the question, why, don’t be afraid to ask why, yes, you work here. Why do you work here? This place has like the worst rating on this. And, that says this, do you agree with that? What, why would you want to, and did you ever leave?
Why’d you leave? And you start to see people squirm about that question of why did you leave, right? Personal reasons. Okay, why? What personal reasons?
Schall:
Did your family move and you went to another facility that’s in another location? Where do you work now? Oh, you worked, five minutes down the road.
Okay. Why? What was really going on here? And I think it’s really important when you’re trying to figure out the story of your resident to figure out that those answers of why was the staff having issues or not having issues?
Schenk:
Interesting. Okay. Let 1, 1, 1 final strategic question for you.
What order do you depose nursing home employees?
Schenk:
Sure. So there’s, I feel like there are a certain group of attorneys that will say, I just want to get the admin and the DON right up front in terms of the depositions, and then work my way down or work my way up. And there are some that are like, I want to get to the heart of the matter. And the CNAs are the ones that have all that information.
And I want to start there. Do you have a, in a typical case, are you on one side of the other? Is it, does it differ? What’s typically what’s your approach in terms of order of deposition?
Schall:
I don’t have an order. I think it depends on the case that you’re handling. And I think it depends on the facts that you have.
I, no matter who you have go first. They’re going to prepare you for the next, they’re going to prepare their people for the next people, right? Or you think that they are sometimes they don’t. To, to me I think it’s just important to understanding your case and understanding what you’re trying to show as to who you really want to have go first, right?
I’ve caught facilities in a host of issues just by, Not having that strategy of who do I take first? An information that this one person says, then later on, this person says something else. And you’re just like, okay, here’s the testimony of this person.
Do you agree or disagree with what they’re saying? You can catch them in various ways, but I don’t think it has anything necessarily to do with the order.
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Schenk:
Gotcha. Just in my
Schall:
experience, it hasn’t
Schenk:
- That’s, Hey, I could
Schall:
get chastised or that one. But yeah.
Schenk:
No I’ve at least through this podcast alone, I’ve learned everybody has their own way that they do stuff.
So I’m not, I don’t judge anybody’s opinion about that stuff. Anyway Victoria, this has been fantastic. I really appreciate you coming on the show and sharing your knowledge with us.
Schall:
Sure. Absolutely. Anytime, Rob, thanks so much for having me on happy to help out in any possible way.
Guest Info:
- Victoria Schall on LinkedIn
- Schall at Law
- Schall at Law on LinkedIn