Pleading and Discovery Strategies in the Nursing Home Malpractice Case 1

• 1.01 — Introduction 

The most important decision made on a recurrent basis by the personal injury practitioner is the decision to accept a case and invest time, experience and money towards its resolution. The lawyer prone to accept a number of speculative or marginal cases is destined to drain his or her office of the substantial energy and resources needed to pursue meritorious cases. Perhaps nowhere is this more true than in the evaluation of cases arising out of the alleged negligent conduct of health care professionals and long term care institutions. The cost of development, in terms of time and money, is so demanding that the initial determination as to whether a case is meritorious is of primary importance. 

 As a general rule, the screening of this type of case involves two fundamental decisions: 1) Is the evidence sufficiently aggravating to support a substantial damage award? and 2) Can the resident’s injury be causally linked to a breach of duty on the part of defendant? 

A proper evaluation of the facts and understanding of the complex issues involved is essential to the drafting of pleadings and discovery in the nursing home case. Accordingly as a predicate to pleading and discovery strategies, the following topics will be considered: 1) common evaluation concerns; 2) causation problems; 3)key damage elements and appraisal questions; 4) comparative verdicts and settlements; and 5) factors influencing the size of a verdict or settlement. This discussion is followed by an examination of: 1) the causes of action that are generally available to plaintiff in a nursing home case; and 2) the pleadings and initial discovery in such case.

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