When building a nursing home abuse case, a Kentucky plaintiff’s lawyer may have to conduct an investigation in addition to using the tools of discovery. There is high turnover in nursing home employees. Therefore, one possible avenue of investigation is to find out what knowledge former employees of the nursing home may have about the case and their former employer.
However, it is an ethics violation for a personal injury attorney or his or her investigators to contact a party that is represented. Current employees of the nursing home are likely to be represented. The other side may request serious sanctions if a current employee or represented party is contacted in the course of investigating and building a case.
A recent case dealt with this issue. The case arose when a nursing and rehabilitation facility filed a writ of mandamus asking that the claims against it be dismissed or that the plaintiff’s attorney be disqualified. The nursing home claimed that the plaintiff’s attorneys’ investigator contacted its employees. The Rules of Professional conduct prohibit an attorney and his agents from directly contacting an opposing party to a lawsuit who is represented by an attorney. The litigation against the nursing home grew out of the death of a patient at the nursing home who came to the home for rehabilitation after an operation. He was confined to his wheelchair and, a month before leaving, fell from the wheelchair and hurt his neck. A license nurse and some nurses’ aides helped him get back into the wheelchair, cleaned an abrasion and performed ordinary neurological checks. He did not complain of any pain. When he did complain of neck pain, he was sent to the hospital. Doctors there diagnosed him with two fractured vertebrae.
A halo (a metal brace) was fixed to his skull to immobilize his neck and head. He returned to the nursing home. During his remaining month there, his skull became infected. He experienced a brain infection and had to undergo brain surgeries. He died one month after he left the nursing home.
After his death, his estate sued the nursing home for wrongful death and nursing home neglect, attributing the death to the fall at the nursing home. The nursing home filed a motion to dismiss the estate’s complaint or disqualify the plaintiff’s attorney on the grounds that an investigator for the plaintiff’s attorney had contacted two employees. The investigator had contacted the licensed practical nurse that treated the man after his fall and a dietary aide.
The investigator was deposed and he testified that he had only contacted those witnesses to determine if they were still employed by the defendant. He had concluded the conversation once he learned they were employed still. The trial court denied the defendants’ motion, reasoning that there was no negative consequence to these limited contacts. It also disagreed with the defendants’ claim that prejudice would arise in the future. Responding to the ruling, the defendant filed a writ petition with the Court of Appeals. The appellate court found the claimed injury speculative.
The defendants appealed to the Kentucky Supreme Court. The Court explained that a writ of mandamus is an extraordinary remedy. There are two kinds: those that consider whether a lower court is acting beyond its jurisdiction and those that consider whether the lower court is acting erroneously. The defendant’s writ was the second kind. There is an exception for cases in which the petitioner can show a substantial miscarriage of justice will result from the erroneous ruling.
However, in this case there were two other adequate remedies. The trial court had already agreed to suppress evidence arising from the improper contacts. If it did not, there was the remedy of appeal. The Court explained that disqualification of counsel is a drastic and disfavored remedy. Lower courts must assess the possibility of prejudice at trial and rule accordingly. The Court concluded that the potential for future prejudice was speculative.
If someone you love has been subject to nursing home abuse, you may want to consult the knowledgeable Kentucky personal injury attorneys of English, Lucas, Priest & Owsley about filing a lawsuit and possible remedies. Contact us at 270-781-6500 or via our online form for a consultation.