Trial Magazine

In cases involving death or cognitive disability, there may be few, if any, witnesses other than the defendant’s representatives and retained experts. This is especially true in nursing home cases—often, family members must tell the resident’s version of events. Nursing home documentation, such as nurse progress notes, tends to paint a very misleading picture of what happened, so it is critical to maximize the impact of family testimony to counter these defense claims.

They visited often and at varying times. Jurors receive the testimony of involved and loving family members better than that of aloof or absent ones, particularly when the family members are the plaintiffs. And family members who visit frequently—and at various times of the day and week—are more likely to witness poor care and conditions at the facility. They can also rebut claims that they did not witness certain shifts or days. For example, if the nursing home has documentation that staff turned and repositioned the resident every two hours in bed, family members can testify that nobody stopped by for hours during their visits.

In-person observations are crucial. Have family members include as many senses as possible in their testimony: unanswered call bells, lack of staff, filthy diapers, unsanitary smells, and disturbing sounds that they personally encountered during visits. This testimony paints for the jurors a vivid picture of substandard care that sharply contrasts the facility’s documentation.

Establish the pain and suffering claim, if there is one. Family can testify to changes in their loved one following the injury or negligent care. They can describe their loved one becoming withdrawn, expressing pain, or being confused and lethargic following administration of pain medications. For example, challenge documentation of a resident “resting comfortably” following a broken hip with a family member’s testimony that the resident was moaning in pain constantly after the fall.

Credibility battles are often the deciding factor in these cases, so you must spend considerable time properly preparing the family. It will go a long way.

Joseph T. Musso is a partner at Ashcraft & Gerel in Alexandria, Va. He can be reached at jmusso@ashcraftlaw.com.