At Hare Wynn, it is our honor to represent families of loved ones that have suffered from nursing home abuse or neglect in Kentucky. With decades of experience representing families or nursing home abuse, we have learned a thing or two about how to pursue these cases and side-step some of the nursing homes tactics to try and prevent the truth from being presented to a jury. As a nursing home abuse attorney, I’ve seen and argued against just about every argument possible.
Recently, I had the opportunity to speak to lawyers in Kentucky and had an article published for lawyers in Kentucky about how to defeat one particular tactic that we see in almost every case we work on. It is important for people to understand what can happen in Court. If you currently have a case, this information may benefit your attorney’s efforts to represent your family.
KEEPING EVIDENCE FROM BEING SEEN IN DISCOVERY
In nursing home abuse cases, a big part of our job is obtaining evidence of the abuse through a process known as discovery. Part of this evidence is always the nursing home’s file, which documents how a patient was treated. Often times, when something goes wrong, nursing homes will refuse to provide certain documents claiming they are protected by what they call the “quality assurance privilege.”
You see, in a lawsuit, the other side has to give you documents about the case unless they are protected by a privilege (like the attorney-client-privilege you are probably familiar with). Defense lawyers for nursing homes across the country will point to a federal law, known as the Federal Nursing Home Reform Act, and claim that it protects certain (and very important) documents from disclosure.
FIGHTING THE PRIVILEGED INFORMATION ARGUMENT
I won’t go into the finer details of the legal arguments behind why the Nursing Home Reform Act doesn’t say what defense attorneys think it says (you can read my article if you are really curious).
I will say, though, that defense lawyers are increasingly relying on this argument in an attempt to avoid turning over incriminating evidence. Fortunately, a reasonable, straightforward interpretation of the Act tells us – and the court – that the Act, in no way, creates a special privilege for documentation during private, state court litigation. To the contrary, the very purpose of the act was to protect residents in nursing homes and disclosure of the truth benefits residents by holding nursing homes accountable for inadequate care.
At the end of the day, your nursing home lawyer should be equipped to handle these objections and use sound legal principles to ensure your case has the evidence it needs. Being aware of this issue gives you a way to better understand your case and find an attorney who is sufficiently knowledgeable to overcome this very common obstacle in court.
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