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Case of arbitrator favoring nursing home shows need for credible witnesses

February 18, 2010
by JBRSAGG
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A long-term care facility accused in a civil action of fatal negligence might be tempted to settle quickly to avoid months of aggravation and bad publicity. But a recent arbitration case in Georgia involving a nursing home that was wrongly charged shows that you can fight for what's right and win.

It's important to remember in cases such as this—a civil action seeking monetary damages—that the burden of proof rests with the plaintiff.

A former nursing assistant at the nursing home Heritage Park of Savannah claimed a resident's ventilator was turned off, causing this person’s death, and that the nursing home then tried to engage in a cover-up. As a result, the deceased's family took legal action against the nursing home. But they should have talked to others before going that route.

No one else would substantiate what the accuser had told the family. In fact, they said she was dead wrong. The ventilator was on and working properly. The elderly woman simply died of natural causes.

The accuser had been fired by the nursing home prior to making her charges, but her motive for making the accusations remained unclear after the three-day hearing. The arbitrator wrote in his February 4,2010 decision: "While [nursing assistant] Ms. Wright may believe what she reported to the family, she did not report this to the hotline or to the internal investigation until after being terminated, which damages if not destroys her credibility."

He ruled the claimants failed to prove any of their charges and he ordered them to pay attorneys fees and other costs—a six-figure sum.

The lesson here for any healthcare facility is to identify credible witnesses to counter the accuser.

In addition, obtaining contemporaneous statements from witnesses in response to specific investigation questions can be vital to challenging allegations lodged long after the witnesses have dispersed or memories have faded.

Whenever possible, employees should record where they are and what they are doing to leave a paper trail. A documented trail should lead to the truth.

Jason Bring is a partner in the Healthcare/Life Sciences Group at Arnall Golden Gregory LLP in Atlanta, where he leads the firm's long-term care litigation defense practice. Bring regularly writes and speaks on emerging healthcare issues and regulatory initiatives. In addition, he gives presentations nationally and regionally on nursing home defense strategies and trends.

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