Today, it is estimated that 1.35 million Americans need nursing home care. By 2030, that number will almost double. Yet though the need for nursing home care is increasing, the quality of care is not. What happens when nursing home care providers don’t care?
Compassionate, skilled advocates are needed. Someone must fight against, and hold accountable, those who mistreat some of the most beloved and vulnerable members of our society. Authors Mark Kosieradzki and Joel Smith have spent two decades trying and winning nursing home cases. In this book, they show you how to successfully evaluate, prepare, and try a nursing home case.
Kosieradzki and Smith teach you how to convey your clients’ stories and establish what happened, how it happened, and why it happened. They provide numerous case examples along with twenty different related sample documents that can be adapted to your practice, including motions, deposition notices, affidavits, and complaints. They also show you how to navigate common types of injuries, damages, defense tactics, liability issues, and the different aspects of trial.
The authors also take a detailed look at the information you need to obtain as part of your presuit investigation for your client’s case. They present four fundamentals to producing effective discovery and offer a checklist and examples to help you determine the types of information and documents you’ll want to obtain through discovery. The authors also share lessons they’ve learned while helping clients injured by nursing homes that have improved how they evaluate, strategize, and execute their cases in other liability circumstances that involve injuries or death, such as product and premises liability cases.
This book is a must-read for any attorney who tries, or is considering trying, nursing home cases.
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Acknowledgments
Publisher’s Note
Introduction
Part One: Types of Injuries and Damages
- Physical and Sexual Assault
- Pressure Injuries
- Infections
- Medication Errors
- Elopement and Wandering
- Dehydration and Malnutrition
- Falls and Drops
- The Purpose of Damages
Part Two: Holding Wrongdoers Accountable
- Liability Theories about Who’s Responsible
- Corralling Multiple Defense Interests
- Dealing with Defense Tactics
Part Three: Practice Logistics
- Ethical Issues (Staying on Track)
- Pre-Suit Investigation
- Discovery
- Trial
Conclusion
Part Four: Appendices
- Complaint—Medication Error
- Complaint—Pressure Injury
- Expert Affidavit—Medication Error
- Expert Affidavit— Pressure Injury
- Deposition Notice—30(b)(6)—Pressure Injury
- Deposition Notice—30(b)(6)—Foundation for Systems
- Deposition Notice—30(b)(6)—Nonparty Vendor
- Motion to Compel—Fall
- Motion to Compel—Pressure Injury
- Motion to Compel—Personnel Records
- Motion for Punitive Damages—Fall
- Motion for Punitive Damages—Medication Error
- Motion for Punitive Damages—Pressure Injury
- Motion for Punitive Damages—Staff Neglect
- Opposing Motion to Strike—Direct Liability
- Opposing Summary Judgement Motion—Patient Assault
- Summary Judgement Motion—Affirmative Defenses
- Summary Judgement Motion—Facility’s Vicarious Liability
- Deposition Notice—30(b)(6)—Elopement
- Summary Judgement Motion—Joint Enterprise
Index
About the Authors
View Excerpt
What Legal Leaders Are Saying
— Randi McGinn, past president of the Inner Circle of Advocates and author of Changing Laws, Saving Lives: How to Take on Corporate Giants and WinMark Kosieradzki and Joel Smith have written the definitive ‘Bible’ on trying a nursing home case. Whatever indignity your elderly cli¬ents have suffered—whether pressure ulcers, fatal falls, sexual abuse, or anything in between—this book provides the discovery, deposition, and trial techniques you need to hold the nursing home accountable. Packed with templates, pleadings, and transcripts from real cases, don’t leave home for the courtroom without this book in your briefcase.
— Lance D. Lourie, Atlanta, GAMark Kosieradzki and Joel Smith, two tenacious litigators who have spent their careers fighting to protect the elderly, have generously shared their wealth of knowledge and experience in this book. It is an excellent resource for attorneys desiring to pursue cases involving neglect of the elderly. It is a must read for anyone undertaking to litigate nursing home cases, including newcomers as well as those experienced in this area.
— Pressley Henningsen, past president of the Iowa Association for JusticeAmazing! Mark and Joel have gifted us with the essential guide on how to hold neglectful nursing homes accountable. For many years they have set the standards in their practice and they graciously and succinctly share them here. Simply put, this book is required reading for anyone doing this work.
— Shayla M. Reed, NCA Executive Committee of the American Association for JusticeFor those of you who have the courage to stand up and fight for vul¬nerable nursing home residents against corporate bullies, this book is absolutely essential. Mark and Joel have taken the complexity of nursing home litigation and distilled it into elegantly simple terms. Nursing Home Cases: When Caregivers Stop Caring not only provides a roadmap for how to build and present a powerful nursing home case, it contains the tools you need, such as checklists, sample motions, briefs, and discovery requests, to build a winning case from start to finish. For anyone handling nursing home cases, from beginners to experienced attorneys, this book is a must-read!
— A. Kimberley Dayton, emerita professor (formerly professor of law at the University of Kansas and William Mitchell College of Law) and coauthor of Advising the Elderly ClientNursing Home Cases: When Caregivers Stop Caring is an extraordinary and must-have resource on litigating nursing home abuse and ne¬glect cases. Using cases studies from their own practice, Mark and Joel illuminate the challenges of documenting abuse and calling those responsible to account for it. The organizational structure of the book, which classifies cases by the nature of the underlying cause of injury, facilitates a methodical approach to investigating and documenting specific kinds of cases. Throughout the book, the authors provide both the theoretical and legal underpinnings for bringing a successful claim, and the procedural and strategic means to achieve results. Every attorney engaged in personal injury litigation against nursing homes needs this book. I cannot recommend it more highly.
— Steven N. Levin, a founding member and one of the original officers of the American Association for Justice Nursing Home Litigation GroupMark and Joel have done a terrific job of putting together in one place the accumulated wisdom of the many lawyers who vigorously advo¬cate on behalf of nursing home residents and their families. This book belongs in the library of every nursing home lawyer.
— Arthur E. Lloyd, vice president of the Arizona Association for JusticeI highly recommend Mark and Joel’s primer on how to litigate nurs¬ing home cases. The book is a rare combination of the academic nuts and bolts of the case work-up process interspersed with the wisdom and advice that only comes from actual experience of fighting in the nursing home litigation trenches. My son Evan and I had the pleasure of joining with Mark and Joel in litigating a nursing home abuse and neglect case. We were able to observe firsthand many of the skills and strategies that are discussed in the book. If you have never tried a nursing home case or have made a career of represent¬ing victims of nursing home abuse or neglect, Mark and Joel’s book should be in your bookcase. Better yet, the book should be on your desk, all marked up and tagged with notes.
— Tad Thomas, secretary of the American Association for JusticeMark Kosieradzki has been dedicated to the education of trial lawyers for more than thirty years. Not only have his CLEs been entertaining, insightful, and presented ground-breaking techniques, his books are grounded in years of research and real-world practice. This work of Mark and Joel’s is the culmination of two careers spent dedicated to advocacy for our nation’s senior citizens and that same commitment to training lawyers on how to better represent their clients. It will be the go-to treatise for nursing home litigators for many years to come.
— Ernest Tosh, Grapevine, TXAs a practitioner of elder abuse law, I am hesitant to buy books about nursing home litigation, as there is seldom new information in them. However, Mark and Joel’s book breaks that mold. This book should be in every practitioner’s set of resources, whether you are a long-time practitioner or someone that does a nursing home case occasionally, this book is a MUST HAVE.
— Tim Gresback, past president of the Idaho Trial Lawyers AssociationThirty years from now, the best lawyers in our country who champion the rights of those abused in nursing homes will look back on their careers and cherish the day they found this incredibly comprehensive, well-researched, and practical guide. To try and litigate nursing home cases without it would be a serious mistake.
— Camille Godwin, Marietta, GANo wasted space here with dry and outdated material! This book is chock-full of practical pointers and loaded from front-to-back with es¬sential information on every aspect of litigating successfully on behalf of our most vulnerable citizens. Kudos to Mark and Joel for writing the book the rest of us have been waiting on for years—an encyclopedic work on nursing home litigation that covers every topic with the same passion and insight that these tireless advocates bring to their everyday practice on behalf of their clients and their mission to educate litigators and trial lawyers to be personally and professionally better every day.
— Kathleen L. Nastri, past president of the American Association for JusticeMark and Joel’s book is an organized, well-written road map to suc¬cess in nursing home cases; but it is so much more. They write with compassion and enthusiasm about representing our most vulnerable population. Their generosity of spirit in providing expert advice, insider tips, and real-life examples will allow those courageous lawyers who take on these cases to do so zealously and effectively. I love the checklists and the appendix; I appreciate the advice; and I admire the authors greatly.
— Mark S. Mandell, past president of the American Association for Justice and member of the Inner Circle of AdvocatesNursing Home Cases: When Caregivers Stop Caring is an outstanding book that describes how to successfully obtain justice in nursing home cases. Mark and Joel provide a comprehensive, detailed analysis that includes many thoughtful, practical ideas and techniques. This is an excellent book that will help trial lawyers of all levels of experience. I highly recommend it.
— Carl Bettinger, author of Twelve Heroes, One VoiceYou think you can do a plaintiff’s nursing home case and not read this book? Really? Kosieradzki and Smith have distilled decades of hard-fought nursing home litigation experience into an easy to read, practical approach to success. This book provides a masterful—and practical—blueprint to litigating a nursing home case from start to finish, filled with numerous templates for success. Practitioners in the field who fail to read this book do so at their, and their client’s, peril.
— T. Thomas Metier, Trial Lawyers CollegeA must-have masterwork! Inspiring, insightful and complete. Kosieradzki and Smith bring us the best guide to winning nursing home cases ever written. Two great mentors share their roadmap to success.
— James Bartimus, past president of the International Society of Barrister’s, and fel¬low of the International Academy of Trial Lawyers, the American College of Trial Lawyers, and the American College of Legal MedicineMark, along with Joel Smith, has provided another MUST HAVE desk reference—this time on nursing home cases. As with Mark’s past publications, this book teaches you how and why to convey your client’s stories as well as leading the way in navigating liability land mines, defense tactics, and all common trial issues. By sharing their lessons, Mark and Joel have given us another invaluable resource to help our clients. Well done gentlemen.
— Kenneth L. Connor, licensed in Alabama, Florida, Georgia, Kentucky, North Carolina, South Carolina, Tennessee, and VirginiaThis is a fantastic resource for all lawyers of all levels of experience in the handling of nursing home cases. Whether you are a veteran or a novice in the handling of these cases, this is a ‘must-have’ resource. It will improve your advocacy and the results you achieve for your clients.
— John F. Romano, past president of the Academy of Florida Trial Lawyers, the National Trial Lawyers, the Southern Trial Lawyers Association, and former chairman of the American Association for Justice’s National College of AdvocacyNursing Homes Cases: When Caregivers Stop Caring is the equivalent of a legal architect’s set of plans to strategically construct the foundation and building blocks of a winning case. The reader is provided with a guided tour of learning to identify wrongdoing, recognize miscon¬duct, and uncover profit over safety activities by elderly care facility managers, employees, and owners. Kosieradzki and Smith have quar-terbacked the handling, litigation, mediation, and trial of hundreds of these cases, accomplishing remarkable results for better than two decades. This is a must-have, must-read, and must-understand “field-manual” to handle these cases to win the discovery battles and to bring home the maximum settlement or verdict for the clients!
— Carma Henson, parliamentarian of the American Association for Justice’s Nursing Home Litigation GroupMark and Joel have done it again—they have made a complicated subject matter easy to understand. This compendium belongs on the shelf of every lawyer who handles, or wants to handle, nursing home neglect and abuse cases. It is written in a style that encourages the readers to continue on, to keep learning more, and provides a wealth of information regarding the most important areas facing nursing home plaintiffs’ lawyers today. In over twenty years of practice, I have not yet encountered such a comprehensive but simply written guide¬book in any other practice area. Superbly written.