Often in a nursing home case, determining how the incident- a fall, choking, burns- really happened is difficult because the nursing home patient often is unable to describe the event. We have to rely on the caregivers to tell us. To say there are times where they have been reluctant is an understatement. If they made a mistake, the caregivers do not want to be accused of nursing home abuse or neglect. There are ways to get this information.
In almost all nursing homes policy and procedure manuals, there is a requirement that the nursing home conduct an investigation to determine the cause of an incident. Those policy and procedures require the nurse caring for the patient to report the incident. Those policies then require that a pre-printed form be employed to investigate the incident. Each nurse on the shift is to be interviewed and those that have pertinent information are to document the event- usually with a written statement. Then the interdisciplinary team- a group comprised of care givers including nurses, therapists, activity directors, and dietary personnel will review the statements. In addition to all this, most policy and procedures require that the nursing staff do a post incident assessment. This assessment is designed to help the nursing staff determine not only what happened, but what factors created the condition which caused the incident. All of these reports are shared throughout the facility. The ultimate goal is to provide care givers with information so that preventable similar incidents will not occur in the future.
Attorneys who represent nursing home residents will request copies of these records to learn the names of personnel involved, witnesses, status of the patient, and obtain review of the incident close in time to its occurrence when witnesses memories were fresh and untainted by time and the influence of supervisors and defense lawyers. Guess what? Almost inevitably the nursing home will take the position that these records are not to be produced because of a perceived attorney client privilege, work product privilege, or quality assurance protection. Most of the time an attorney can file a motion to compel production of these records and the court will make the nursing home provide them. But what can layman do when there is no lawsuit pending and the family just wants to know what happened?
If your loved one has been injured and there does not seem to be a reasonable explanation from the nursing home, go to the administrator and request the incident report. Often the policy and procedures require that the resident is entitled to a copy of the incident report. Likewise, his personal representative is entitled to a copy. If the nursing home has not performed an incident investigation and made a report, request that they do so immediately. If they still do have not performed an investigation or do not provide a copy of the incident report to you, file a complaint with the regulatory authority in your state. In most states that is the department of public health. Here are the web sites for Alabama and Mississippi, the states where I am admitted to practice: Alabama: http://www.adph.org/HEALTHCAREFACILITIES/Default.asp?id=688 Mississippi: http://www.msdh.state.ms.us/msdhsite/_static/30,0,83.html
Civil litigation attorney Billy Cunningham practice concentrates on personal injury, wrongful death, nursing home abuse, business litigation, environmental law and insurance matters. He is licensed to practice in the state and federal courts of Alabama and Mississippi, as well as in the U.S. Court of Military Appeals, U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States.
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