Sending Initial Discovery Requests

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In addition to investigating what exactly happened to a particular patient or resident, formal discovery through written discovery requests is effective in establishing a nursing home's or assisted living facility's pattern of institutionalized substandard care for purposes of the Elder Abuse Act's enhanced remedies, as well as punitive damage liability. The Los Angeles nursing home and assisted living neglect lawyers at the Law Offices of Ben Yeroushalmi have extensive experience conducting discovery in elder abuse and neglect cases and understand that it is generally the goal of facility defendants to delay and obstruct discovery as much as possible. It is not uncommon for elder abuse attorneys to file dozens of motions to compel, and even motions for sanctions for a defendant's failure to comply. Plaintiffs should therefore anticipate fighting for and compelling each and every discovery request sent to these defendants.

The following categories of information are typical to request of defendants in nearly all elder abuse and neglect cases:

  1. Facility Records
    • Patient / Resident Records

      The patient's or resident's facility records are undoubtedly discoverable and should be included when sending initial discovery requests. These documents may contain crucial information about any substandard care that was rendered and typically include a medical chart, business records, admission agreements, brochures and advertisements, and family and resident council meeting records. Policies and procedures of nursing and administrative staff during the patient's or resident's admission are also important to request to determine whether the facility was following its own guidelines in caring for a particular elderly individual. This evidence should be easily obtainable and is a good starting point for an elder abuse attorney's case investigation for a particular patient or resident. Evidence of abuse or neglect is often not found in these documents, however, either deliberately or negligently, and instead such evidence may emerge circumstantially or through logical deduction of information found in these records.

    • Staffing Records

      The singular issue that is common in almost all nursing home and assisted living abuse and neglect cases is facility understaffing. Skilled nursing facilities are specifically required to provide a minimum daily average of 3.2 nursing hours per patient day. (22 Cal. Code Regs. §72329(f).) Nearly 90% of all nursing homes and assisted living facilities in the United States are understaffed, either in number, training, or both, and cannot effectively render the proper care that is needed by all of the patients or residents of their facilities. This is often the result of facility owners and operators deliberately cutting hours and paying extremely low wages in order to save money and reduce their expenses. Consequently, patients and residents of these facilities suffer a lower overall quality of care.

      Examples of these staffing records include, among others, sign-in sheets, time cards, employee work schedules, nursing hour per patient day (NHPPD) documents, and daily census records. These facility staffing records can and usually do show a pattern of insufficient staff that lead to a lower quality for care for patients and residents, including not turning and repositioning, not answering bed alarms and call lights, not feeding, not assisting to the bathroom, and not responding to signs of distress. This is undoubtedly evidence of abuse and neglect and is helpful when litigating a claim.

      The elder abuse attorneys at the Law Offices of Ben Yeroushalmi in Los Angeles are very experienced in proving claims involving facility understaffing. We have a history of being certified as class counsel in multiple separate California class action lawsuits for understaffing and have been involved with the best experts.

    • Ownership, Management, Administration Records

      A particular nursing home or assisted living facility is not usually comprised of a single entity. Most of these facilities are engaged in a massive "shell game" involving multiple companies, management entities, and owners who siphon funds and resources in and out of these companies to make maximum profit. Ownership is often complex and changes constantly, and it is difficult to determine who is making the decisions of facility operations, whose insurance carrier provides coverage, and what company's finances should be used to determine punitive damage liability.

      Experienced elder abuse attorneys thus typically request a number of ownership, management, and administration records when sending initial discovery requests to discover information regarding the financial incentives and priorities of nursing home and assisted living management. These requests include information and documents specifying the identifying information of owners and management companies, facility applications to Medicare and Medi-Cal, financial performance records, and internal audits or evaluations conducted by defendant facilities that are sent to their operations staff.

  2. Facility Policy, Procedure, and In-Service Training Documents

    In California, the Department of Public Health (CDPH) is responsible for certifying that skilled nursing facilities are in compliance with state laws and regulations. The CDPH conducts regular visits to facilities and issues citations to those that are found to have violated these regulations. CDPH survey and investigation results are encompassed in a report called a "Statement of Deficiencies and Plan of Correction." These are public records and are helpful in investigating the circumstances surrounding a particular patient's injury.

    For assisted living facilities, the California Department of Social Services ensures that these facilities are in compliance with applicable regulations, and issues information regarding their investigations called a "Facility Evaluation Report" or "Complaint Investigation Report." These reports are also public record and list information about a specific deficiency issued with its associated plan of correction.

    In addition to investigating the particular circumstances of a patient's or resident's injury at a facility, these reports are also helpful in demonstrating that a facility had previous knowledge of deficiencies in its operations for proving recklessness, or "conscious disregard," for purposes of enhanced remedies under the Elder Abuse Act. Evidence that a defendant facility knew of dangerous conditions or procedures were taking place at its facility, and that it failed to correct those conditions before injuring a plaintiff, can successfully satisfy this requirement.

    Although these reports are public record, documents pertaining to how a facility is complying with its "Plan of Correction," such as facility policies, procedures, and in-service training records, are not. Experienced elder abuse attorneys usually request these documents in order to determine whether a facility has willfully ignored preventing similar injuries and violations.

    Defendant nursing homes often argue that these "Statements of Deficiencies" and "Plans of Correction" are inadmissible at trial and thus undiscoverable during litigation. However, the standard for discovery is that any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (California Code of Civil Procedure § 2017.010.)

    Information garnered from these reports are generally reasonably calculated to lead to the discovery of admissible evidence, which include internal reports written by the facility and the testimony of witnesses to the subject incidents. Further, the facility's knowledge of the fact that its operations were found deficient can be relevant to determine whether it acted with malice, fraud, oppression, or recklessness for the enhanced remedies under the Elder Abuse Act and punitive damage liability. These reports are also relevant to illustrate declarations against interest, inconsistent statements, and business records. (See Evidence Code §§ 1230, 1235, 1271; see also Evidence Code §§ 1220-1227.)

  3. Financial Information

    Nursing home and assisted living financial records are great sources of information to determine whether and why facility staff receive bonus compensation. Often, bonuses are paid for recruiting patients and residents to achieve a higher census and for meeting budget or profit goals. All of this information can evidence a corporate policy to prioritize higher revenues over patient care.

    Veteran elder abuse litigators will investigate the relationship of facilities with management companies and owners to determine whether large "management fees" are being paid for minimal patient or resident services. Financial information can also be used to establish high profit margins where facilities claim that they are unprofitable. These requests include information and documents regarding the facility's accounting, payments, cost reports, and funding. Again, most nursing homes and assisted living facilities are involved in a "shell game" comprising of multiple owners and management entities to divert money and resources away from patient care and into their own pockets to make higher profits.

  4. Chain-of-Command Information

    In most nursing home and assisted living cases, the enhanced remedies of the Elder Abuse Act and punitive damage liability depend on whether abuse or neglect was ratified by a corporate managing agent. (See California Civil Code § 3294; see also Welfare and Institutions Code §§ 15657, 15657.5.) Information flowing between corporate entities and the facility should therefore be requested in discovery. These requests typically include corporate communications, corporate policies, and licensing records. The elder abuse attorneys at the Law Office of Ben Yeroushalmi also have experience successfully obtaining corporate e-mail communications and phone call records to determine whether substandard care at a facility was ratified by a corporate entity.

Specific Discovery Requests

Each discovery request listed in the tables below was carefully tailored by experienced elder abuse attorneys to garner information specifically pertaining to the elements of a typical elder abuse and neglect case, including enhanced remedies and punitive damage liability. Although each abuse case is distinct and requires a variety of different information from defendant facilities, persons, and entities, the categories of discovery in the tables are the items that an experienced elder abuse attorney would typically request in sending initial discovery requests. Also note that skilled nursing facilities and assisted living facilities are governed by different laws and regulations, and therefore, the information needed to prove the elements for an elder abuse claim will likewise vary. Therefore, it is in a plaintiff's best interest to retain an experienced elder abuse attorney to receive the best results for their case.

Special Interrogatories (SI)
Employees employed at time of incidentTime of incident
Residents in facility at time of incidentTime of incident
Identity of administrator, DONs, NPs, CNAs, RNs, dieticians, consultants, etc.Period of admission
Existence of documentsPeriod of admission
Persons with knowledge of eventsPeriod of admission
Identity of management and consulting companiesPeriod of admission
Identity of Quality Assurance Committee membersPeriod of admission
Factual bases of defensesVaries
Prior complaints1-year prior to admission - end of admission
Identity of investigations / violations1-year prior to admission - end of admission
Employee suggestions1-year prior to admission - end of admission
Citations / Deficiencies3-years prior to admission - end of admission
Prior lawsuits5-years prior to admission - end of admission

Requests for Production of Documents (RFPD)
Facility floor planPeriod of admission
Insurance policyPeriod of admission
Nursing home medical chart (including ADL sheets, MDSs, etc.)Period of admission
Assessments and care plans for residentPeriod of admission
Narcotics logsPeriod of admission
Revenue / remittance and reimbursementsPeriod of admission
Third-pty billing information for residentPeriod of admission
Billing file for residentPeriod of admission
Administrative / Nursing policies and procedures (including Resident Assessment Protocol (RAP))Period of admission
Personnel policies and proceduresPeriod of admission
Corporate structure / guidelinesPeriod of admission
Records related to ownershipPeriod of admission
Medical examiner documents and photosPeriod of admission
Pictures of the facilityPeriod of admission
Employee personnel filesPeriod of admission
Employee job descriptionsPeriod of admission
Census sheetsPeriod of admission
Consulting / management agreementsPeriod of admission
Training and in-service records1-year prior to admission - end of admission
Staffing (work schedules and time cards)1-year prior to admission - end of admission
Staffing agency records1-year prior to admission - end of admission
Advertisements and brochures1-year prior to admission - end of admission
Financial and budget information1-year prior to admission - end of admission
Cost reports1-year prior to admission - end of admission
Property lease agreements1-year prior to admission - end of admission
Government surveys and reports1-year prior to admission - end of admission
Internal reports and external surveys and investigations1-year prior to admission - end of admission
Prior complaints1-year prior to admission - end of admission
911, Police, Fire reports1-year prior to admission - end of admission
Customer satisfaction surveys1-year prior to admission - end of admission
Key factor summary reports1-year prior to admission - end of admission
Pressure wound reports1-year prior to admission - end of admission
Facility incident reports2-years prior to admission - end of admission
Resident Council minutes2-years prior to admission - end of admission

Need Additional Information?

For additional information, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.

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