The Role of Former Employees in Strengthening Nursing Home Cases
What secrets do former nursing home employees reveal about the care industry? Dive into the revealing truths and legal implications of using ex-staff members as key witnesses in nursing home abuse cases. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Thomas Pleasant, Esq. to discuss how these insights can dramatically strengthen a case and bring justice to affected families.
Schenk:
Using the testimony of former employees in your nursing home cases. Stick around.
Hey out there, everybody. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode today. We’re talking all about finding. gathering the statements and testimony of former employees and what we do with that and why we are seeking that testimony. We’re not doing it alone.
We had the fantastic trial attorney Tom Pleasant out of North Carolina to talk to us today about that.
All right, now it is time to get into the meat and potatoes of the episode. Got a great episode today. Have a terrific conversation with our guest, Tom Pleasant. What a great guy. Tom Pleasant is a trial attorney. He’s licensed in North Carolina, Georgia, Kentucky, and Tennessee. brings nearly 30 years of legal expertise to his practice, specializing in catastrophic injury, accident and wrongful death cases particularly in nursing home and long term care settings for over 16 years.
Thomas has an impressive track record. He holds a Martindale hubble AV preeminent rating and has been elected to super lawyers showcasing as high peer recognition and professional achievement. And if that’s not enough, When the guests send me guests will send me their bios. Tom has actually included the symbols for the registered trademark of Martindale hubble and super lawyers, as well as the TM for trademark for AV preeminence.
So his attention to detail is unwavering. He’s a graduate of Jerry Spence’s trial lawyers college, and he has successfully tried numerous jury trials, including medical malpractice cases and nursing home cases. And we’re so happy to have him, Tom. Welcome to the show.
Pleasant:
Hey, Rob. Thanks for having me.
Why are former employees useful in nursing home cases?
Schenk:
All right. Appreciate it. Yeah. So I think that a big differentiator in value of a case is on one side, you have cases in which you’re relying on the chart, what your clients are saying, perhaps what you found an open records request. And then you have on the other end, you’ve got a case where you have all that.
But you have actual people that were at the facility, former employees that are willing to testify. And I feel like there’s a big difference in value between those two. So I’m glad to have you on to talk about why there is a difference. So the first thing is what would make you seek out the testimony of former employees in a particular nursing home case?
Pleasant:
I agree with you, Rob. I think it does increase the value of a case. It may depend on the case whether the cost and time is justified. But I’ve been doing long term care cases almost exclusively for over 16 years. And I find that almost all cases are driven by understaffing. And or some form of lack of resources.
And I think it, it leads into a a theme for your case that is bigger than just your resident or your victim. It makes it about what’s going on with this corporation, why are they not funding the facility like they need to, and what is the effect on the residents generally, and in addition, your own resident or victim in your case.
Generally my approach with. Former employees is to get to the understaffing and the general conditions of the facility. To try to, get evidence of that to use at trial. And as we all know, the defense is going to evaluate the case and put a value on it based on what they think is going to happen at trial, as do we.
So I, that’s my approach and, I have a formula that I think works to, set this out. It’s a broad formula and it can take different forms in different cases, but generally you have former employees who talk about the lack of staff and or resources and that they’ve complained.
To management in some form or fashion, management was aware and basically there was no response. And typically you find that, I think that’s because. The people who hold the purse strings are just not willing to spend the money, despite, in many cases, the facility having more than adequate resources to, to fund extra staff and or resources for whatever purpose.
Schenk:
It’s almost as though obviously if you can find a former employee that remembers your specific client. or knows maybe what happened if it’s a fault case or whatever. That’s great. But in reality, you’re looking for a broader strategy to link what they’re going to say to a narrative that they didn’t have enough people, didn’t have enough stuff.
So what’s what are you looking for them to say? Like how, what can they say that feeds that narrative?
Pleasant:
I think, this whole concept of former employees is on a sliding scale, so to speak. You could find employees who may not have had anything to do with your resident.
You could talk about the conditions in the facility. I think that falls on the end of the scale of more difficulties with getting that into evidence. I do frequently run across. Employees who did remember my victim. In fact, I just recently did a recorded statement with with a witness who actually very much remembered this resident.
But and so I think it just depends on what each individual former employee has to say and what they can talk about. And that can create, some difficulties. I recently got a recorded statement and this is the one I’m talking about, this lady who remembered my resident, but my resident was actually moved from her unit to a different unit about a year before kind of everything really started falling apart for my client, my victim, my resident in terms of wound development, and she just could not really, and would not really speak about understaffing across the whole facility.
And so she probably had some good things to say that will help me lay the foundation for doing some other discovery. So I don’t think it was totally wasted. That’s another option. If you can get a statement from a former employee and they’re talking about these issues, I think you can help educate a judge as to why you may need more detailed understaffing evidence.
Even if it wasn’t particular to your resident or your residence unit. But I think there’s a lot of variations on how you get this evidence in in North Carolina, for example, we do have some decent case law. On, what I’ll call general conditions of the facility, and I think in other states you have that in terms of, can some former CNA come in and talk about understaffing in the facility when it doesn’t have anything to do with your resident?
Is the former employee can she testify, she, he or she testify about what were the conditions in the building? Can they narrow it down to. What were the conditions on the unit? Your resident was in. And then, I think the tightest and best scenario is if you have a former employee who can talk about your resident through recollection or at a minimum, if we know that resident took or that former employee took care of your resident through the A.D. L. Sheets or, through the nursing chart. And even if they don’t remember the residents specifically, I still think you’ve got a really good argument to get that in. To get that into evidence. So as far as the, the evidence rules on those sorts of things, um, most defense lawyers are going to try to challenge the stuff coming in.
I’ve had different arguments made. I’ve had the argument that a C. N. A. Cannot talk about understaffing unless, that C. N. A. Is actually an expert witness and designated as an expert witness. In the case again in North Carolina particularly, we have some pretty good law on this. And specifically Rule 701 in the in the, in probably most evidence codes, that’s North Carolina’s rule is, deals with lay opinions and so you, if you read that rule, I think there’s a very strong argument that you can get this stuff in even though it’s not expert testimony.
But it may be. Somebody who has particular training and experience like a nurse who, although they’re not giving expert testimony, they can testify about their experience. There’s a case in North Carolina that talks about this with a nurse who testifies under rule seven of one is to the effect of a medication on somebody. And I think it’s really hard. The tighter you get on that sliding scale. I think it’s hard for a judge to decide that the evidence is not relevant. Just basic relevant evidence on explaining why the injury happened. And if you have a former employee who is basically saying I couldn’t do my job because I couldn’t get around.
So if it’s a pressure ulcer case and they’re saying, I couldn’t turn and reposition our residents every two hours or as needed. And they took care of your resident and your resident had a pressure ulcer. That’s a pretty tight connection. And I think a judge has a hard time legitimately keeping that out of evidence.
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How do you find former employees?
Schenk:
Stepping back logistically, how are you finding the former employees? What’s the process?
Pleasant:
There’s different ways to do it. Almost exclusively it’s going to come from medical. My preference is to do this early before a lawsuit is filed. And generally in nursing home charts, for example, if it’s a skilled nursing facility, you’re going to have very detailed what we call ADL sheets that are the activities of daily living.
And those are the primary CNA or nurse aid. That’s the primary CNA or nurse aid documentation. And in most cases, those. Sheets will have the full names of the CNAs or AIDS at the end and a key. Every now and then we run across situations where they don’t produce those as part of the pre production of the medical records, and that creates a real problem.
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But typically I like to go in and just look at what we’ve got and try to narrow it down to the time frame. And, obviously it’s for my resident or my victim and just use those names. And then I, I subscribe to a public records service and we find these people Or we get an investigator involved as another reason document request to ask for the information about employees at the facility.
Typically they don’t like to produce that. You may have to fight for it. Sometimes we get it. Sometimes we don’t. But like I said, most of the time I’m trying to do this ahead of doing any discovery or even following a lawsuit. And one of the reasons for that also is that I’ve found over the years that can’t say all defense lawyers will do this, but once a lawsuit is filed, And if they get wind of you, or maybe even before you start doing it, but if they, particularly if they get wind that you’ve got an investigator out in the field, or you’re calling these people, and word does get around because some people will call and talk to other current employees of the facility.
A lot of these folks know each other and continue to have relationships. The defense lawyers can get pretty aggressive and writing letters and walking the line of intimidating these folks they can do that a number of ways, I think, without necessarily crossing the line. But, they talk about HIPAA and they sort of, make these low level employees feel like, they just scare them.
They may talk about, where you’re going to have to, be subpoenaed to court, you’re going to have to testify in a deposition. The lawyer is going to grill you. There’s a number of ways I think they do that without actually crossing some, ethics rule, bright line but, getting the list is not that difficult, especially if you’ve got a good ADL sheet, so once we do that, then we decide, how are we going to approach this because I don’t think there’s one right way to do it.
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You can do it with an investigator. I’ve had success just calling these people up. It takes, it takes a lot of time. You can have staff do it, which I think is better. I think people are very intimidated if a lawyer cold calls and starts trying to talk, talk to this person about some lawsuit.
I think it’s likely to backfire. So in the past, I’ve had staff do it and just gauge cooperation. And if somebody seems willing to cooperate and talk there’s a couple different things you can do. You can decide to go ahead and take a deposition or you can get on the phone and do a recorded statement as a lawyer.
And just really do almost like a little mini direct exam kind of thing and have your outline ready and all the key things in the case that you want to talk about. And then at a minimum, if you end up getting somebody who’s just not going to cooperate later on, and it happens all the time. I’ve had it happen even after getting recorded statements from very cooperative witnesses.
Even after you get that recorded statement you may get somebody ghosting you and you may decide that in the best interest of your clients, you just still need to go ahead and take that person’s deposition and if you have to subpoena him, just do it just to, to get the evidence. I think some lawyers disagree with that approach because they feel like, you If somebody is not cooperating, you’re just gonna have problems.
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But I think if you’ve done the recorded statement in enough detail, it’s really hard for them to back out of that. And I’ve waffled on that over the years. You feel bad about doing that, and, subjecting people to the process if they don’t really want to help, but by the same token, I feel like, our job is to prosecute the case and to develop the evidence.
And if we know a witness has got information that helps our clients, I think we just have to do it. And that’s been my approach is to just take that position. I don’t threaten these people. I just, but if they won’t cooperate, I feel like, I’ve got to go ahead and do this, go the subpoena route.
And one of the things that can happen too, is if you use investigators typically they’re not going to know, I feed them a lot of information about the case. But they are not going to go out and do an examination their job is more to get a generalized statement or a general feel for what the witness knows the level of cooperativeness, and that sort of thing, and maybe to get a very cursory kind of statement, and in my experience, if you don’t follow up on that and either get a recorded statement or go ahead and get a deposition, There’s a there is a good chance.
I’ve had it happen many times over the years where when this when that CNA or that former employee is sitting in a deposition that the defense lawyers probably ended up has ended up noticing up. They will also scare the Employee they will do things to make the employee, basically feel like they can’t stick to what they said.
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And when you just have a bare bones statement from an investigator has done, there’s not enough. You haven’t locked down the testimony sufficiently, in my opinion, to avoid some of the problems that you have. When that happens, I’ve had I had to happen a lot early on. When I first started doing this kind of work.
And so that’s why I’ve started trying to aggressively just, for lack of a better term, chase after these people and try to get him on the phone. And I usually ask him in North Carolina. It’s perfectly permissible to record these people without their permission. If you’re a party to the conversation I tend to ask.
I think it just looks better. And I don’t want the defense lawyer to make it look like I’m doing something sleazy because some people don’t like that, I think if they see that as even though it may be legal, it’s not really something that you should do. I find that almost all the CNAs and aides who I’ve gotten statements from an investigator or who have indicated some cooperativeness will agree to be recorded.
And they will also agree. to do an affidavit. And that’s another kind of third little follow up that I do consider in many cases is just going ahead and getting an affidavit. And one of the reasons for that might be, I don’t know after I do a recorded statement that I necessarily want to produce that entire recorded statement.
And I think, judges handle that differently. It’s arguably work product. But an affidavit is a way if you don’t think you’re quite prepared to just divulge the entirety of your statement. You can get an affidavit with the key stuff in it and lay it out in an organized way to use for pre suit negotiations.
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Schenk:
In North Carolina, are you allowed to talk to current employees?
Pleasant:
Yeah, that’s another great question, because the rules about talking to these people can be convoluted. In North Carolina, we have a lot of ethics opinions on all this, and some of it can be pretty confusing. And in some states that I’ve done cases in, Arizona is an example of this.
You, you really, almost have to just go to the judge to get an order and even talk to these people. It’s very risky to do it. What I have decided to do for a number of reasons is I typically don’t talk to current employees, although I think you can absolutely talk to them if they are low level and if they are not directly being blamed for the conduct in the case, I would say that’s a broad sort of summary.
Kind of, rule, rule of thumb and the reality.
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How do you know who is former or current?
Schenk:
Yeah, I was just, I hate to interrupt, but that was what I was going to ask is because it, okay. So you, there’s a certain percentage of cases in which you or your staff are the one reaching out to these form or to the employees. How do you know who’s still there?
Who’s not there? How do you, in your introductory call to them? Do you, is that the first question? Do you still work there? Like, how do you first question? Okay. Yeah.
Pleasant:
Yeah. Yeah. No, great question. The first question is are you represented by an attorney? Because I think that’s the key threshold because if somebody is represented and that may throw them off at first, but I think you have to ask that first and be sure, because it doesn’t matter who you can contact in terms of current, former, high level, low level.
If they’re represented, you can’t talk to them, so that’s the threshold inquiry, and, if you have a good investigator who’s experienced with this, they will know that, but in the beginning, if you’re working with a new one, you need to make sure you give them a script, and that they understand what they need to do, because you’re held to the conduct of your investigator you’re responsible for what that investigator does.
But to answer your question, the next question would be, if you don’t know already is, are you still working at the facility? And if you have only got ADL sheets, um, from a case pursuit and you don’t have a status. Through discovery, then you have to ask that. And, my approach in conjunction with the ethics side of it, there’s a practical side of it, which is basically, I think you can expect most current employees to not be helpful in your case.
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And and if you’ve got a good long list of A’s or C and A’s You are you’re best, your best efforts are focused on former low level employees. That also relates to, what kind of former employees are you going to talk to? Are you going to try to talk to floor nurses?
Technically, under the rules in North Carolina, you can talk to a floor nurse. You probably shouldn’t talk to the director of nurses. You probably shouldn’t talk to a charge nurse. But it’s a little gray. But I think in terms of results, what I have found over the years and what the primary investigator I’ve used over the years will say is it’s generally just not effective.
And the focus needs to be on the C. N. A. S. And certainly just on former C. N. A. S. So that’s always been my approach. And it’s been pretty successful. And it’s pretty rare that he goes out and doesn’t find a couple of people on every case.
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Schenk:
That’s an interesting perspective because it seems to me, what you’re saying is that irrespective of what the law might be in terms of contacting former employees being high level or low level, You’re still only going to reach out to the CNA is because they have less skin in the game with their license.
They’re, the CNA is more likely to tell the truth. That, that kind of thing. It’s not necessarily because you know that you’re okay from an ethics standpoint, like you, you want the CNAs regardless.
Pleasant:
Yeah, exactly. In other words, yes, there are considerations other than can we contact this particular employee?
It’s also. Where are the resources best allocated because it’s expensive, and if you’re going to get an investigator out there, usually we have a list that’s long enough that the investigator is going to fill up a week, just trying to get the CNAs to talk. And then the other thing I’ve also found, cause I’ve had situations where LPNs who are floor nurses have talked to the investigator and been very cooperative and then they get cold feet and I think on the whole, the more educated they are.
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The more likely they are to go home and talk to their spouse, the more likely they are and to be talked out of talking to the lawyer, the more likely they are to go out and talk to a lawyer. I’ve had that happen not too long ago on a case I had somebody set up, I was gonna go meet with them and they basically texted me back and said I’m just not gonna do this
Schenk:
right now.
Pleasant:
That’s a person who may cooperate, if I called them up and said, Hey, I’m gonna, I’ve gotta take your deposition. I may be able to get her to talk to me a little bit. And I can, maybe I can just gauge that she’s going to be cooperative and tell the truth in the deposition. There’s a chance I may notice that deposition of.
In this particular case, this nurse had actually texted photos of a wound to my resident’s daughter. Basically and called my resident’s daughter and said, this shouldn’t have happened. I wanted you to know about this, blah, blah. So that’s a person who, in a deposition or trial setting may actually tell the truth.
And feel like, they’ve really got to tell the truth. But I’ve had nurses come in depositions also who you can do. You just know they’re lying because they’re just scared and they just don’t want to be involved. They and C. N. A. S. Are like that a lot of times to the lower level employees.
These people are You know, a lot of times they’re just scraping by. They need, they don’t need to miss work. They’re just scared. They, they just don’t want to have anything to do with it, so that’s a big challenge. It’s really hard to get people to do the right thing.
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When do you get a Private Investigator involved?
Schenk:
What so you have the chart pre suit you scrape it for all the CNAs. You have your staff, you use whatever database you use to get the phone numbers. You start calling. When is it that you decide that you would rather have a PI involved in the process? What’s the, what is your decision tree for okay, this might be too much for me or what’s what’s involved in getting the PI?
Pleasant:
That’s a, that’s really a threshold question. I think it, and I don’t have an answer for that. I think, to some extent, I think it depends on who your staff is and how much time everybody has to do the work. Sure. I’ve had success having staff called people up and, getting me in touch with them and setting up recorded statement I’ve even.
I didn’t mention this earlier, but one thing I’ve also done in the past is basically hire a court reporter and go sit down with a court reporter and have this person give me a statement under oath which is something else you can do. It’s not a full deposition, but. That can be effective. I haven’t done that in a while, but
Schenk:
you knows, that’s very cooperative person,
Pleasant:
Yeah, I know. Yeah. I, frankly, I haven’t really done the ap, I haven’t used the approach of calling, having staff call or calling myself upfront in a long time. But my default for some years has been mostly to just send an investigator out.
Schenk:
I see.
Pleasant:
I think the advantage is.
People, it’s much easier for people to dodge person who’s coming and knocking on the door versus, somebody who’s just trying to call up and I don’t know you and you’re just calling me and it’s easy for me to block you or ghost you or whatever. The downside to the investigator is it’s a lot more expensive.
But I, I think. I come down on using the investigator just because investigator can go out for a week or whatever and sit there and try to figure out people’s work patterns. They can also you could do this on the phone too, but they often, when they talk to people and establish rapport with them, if you’ve got a good investigator they will also often open up and give the investigator other names just in the course of, chit chatting about the facility and the case and things like that.
And I’ve had that happen. The cost is higher, but, by my calculus, I certainly cannot pin a particular value increase to a case on having former employees. But I believe that the value of the case is increased by far more than the cost of the investigator, if you can get good statements, um, but it is a lot of work to follow up and get people to, to communicate with you and then, to continue to stay in touch with them and just keep them on your radar and then to take it to the next step and get the recorded statement, I find it to be pretty frustrating.
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What are some evidentiary challenges to using former employees?
Schenk:
No, it’s a challenge. I know that in my most recent case that I’ve used a private investigator and thank you for recommending that private investigator. He got, I think he had maybe 40 names to work with and he got eight statements, but out of the eight statements It’s like half of them have ghosted me.
Two of them are on the fence of whether they want to testify. And then one is I don’t know, hates my guts, I don’t know, but I’ve got the statements, but I think you’re right. I think it requires a lot of massaging and I’m probably not massaging them. In, in, in in a good way. And I wasn’t present when the written statements were were generated because my guy went out, got them to sign written statements, but I wasn’t present.
Pleasant:
And that’s typically what I do as well. I think it’s much less likely actually for, one of these employees to former employees to be cooperative. If the lawyer shows up. I’ve heard I haven’t done this myself. Actually, I did do this one time. And I like the approach if you can do it, but if you’re in the area, I know my practice is pretty spread out, but I did have a case that was close by to where I live and the investigator got an employee and basically talked to the employee.
And then set up another meeting for me and the investigator to sit and talk.
Schenk:
Oh, wow.
Pleasant:
And after that, I was able to do a really extensive affidavit with this particular former employee. And I think that works really well. But your point is exactly the way this goes down. It can be really challenging even after they give a statement to really do what needs to be done.
And that leads to. The evolution of my philosophy, which is at some point, if I can’t resolve this case, there’s going to be a deposition probably. And I’m just going to probably subpoena these people. And use their statement it’s a judgment call because again, if you just have a scant bare bones statement going into a deposition, you’re not quite sure what you’re going to get.
Um, it’s, but it is a challenging part of the practice to, to find these people and to get them on board for sure.
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Schenk:
Agreed. Tom I really appreciate you coming on your show and sharing your knowledge. I know that I’m very thankful because you recommended a great PI for me. It’s helped me very much in some cases.
I just wanted to have you on and talk about that. And I really appreciate it.
Pleasant:
Yeah. Glad to help. All right. Take care, Rob.
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