Sunday, August 25, 2002

Tricks of the Trade
By Private Investigator Michael T. O'Rourke

Question: I am a Paralegal with an attorney specializing in plaintiff personal Injury cases. Our potential client alleges a local nursing home abused and neglected her mother. Her mother was rushed to the emergency room where she subsequently died. We would like to look into the matter more closely before accepting the case. Do you have any suggestions?

Answer: All investigations begin with a witness to an event. Interview the client to ascertain names of staff, administrators, complaint history, specific allegations, etc…In an effort to locate witnesses to abuse, you should first send a letter requesting to the State of Delaware, Division of Public Health, 1901 N. duPont Parkway, New Castle DE 19720. This agency regulates the nursing home industry in Delaware. Recite the Freedom of Information Records Act in your request and ask for the following records:

A list of employees who worked at the nursing home just prior to, during and shortly after the patient was at the facility. Specifically request the social security numbers of the employees, their last known address and their date of birth. If you specify that you would like a copy of their licensing application, the information should be included on these.

Ask for all records pertaining to any disciplinary action taken against the nursing home or any of the staff members during the time frame in question.

Request a copy of the State's inspection records for the facility during the specified time frame.

Ask for a copy of the facility's licensing records including the application, ownership and corporate records.

The State may try to avoid providing this information to you and may even ask for the State's Attorney General to rule on whether or not they have to release the information. In general, they will eventually have to release at least part of this information. The remainder can be gained by subpoena after suit has been filed if you choose to accept the case. Information the State does not include can be surely gained from the nursing facility at a later date.

The records should be closely scrutinized for information that may suggest certain employees who have had conflicts with the facility and who may therefore be adverse towards the nursing home. These are the employees that you should seek out first. Current employees should be deposed, and former employees should be interviewed. Make sure your investigator complies with Monsanto v. Aetna Cas. & Sur. Co. , Del.Super., CA.No. 88C-JA-118, and Del. Law Title 24, Chapter 13.

Obtain copies of the patient's medical files and charts. Ask the potential client to request, from the nursing facility, the patient's daily charts in which reflect their eating habits, medicines, etc. After doing so, you should then ask for a list of employees and their schedules that worked during the time frame in question. Your client might even know some of the names if she was a frequent visitor to her mother over a duration of time.

Once you have these, you can begin to cross-check the records with the charts to see if the person was actually working on the day in which they insert their initials.

The "drug charts" should be checked to see if the medications were being given to the patient on a regular basis. The patient's doctor should be contacted and a copy of their records obtained as well. These records should be matched against the orders in the nursing home records to insure that they reflect that the nursing staff properly received, executed and documented the orders by the doctor. The medicine should be checked to make sure that the doctor actually prescribed those that the facilities were giving to the patient. A check of the charts should be conducted to make sure that the person giving the medicine was licensed to do so. In addition, the records need to confirm that the person signing the drug chart was actually on duty on that particular date. The daily charts of the patient should also be examined to see if there is an unusual change in the weight and eating habits of the patient.

In the course of the investigation, police department records should be reviewed as well. Each jurisdiction has different restrictions on their records and their accessibility as well as the ways in which they can access the records. Where possible, ask them to check the home by address for a period of at least one-year prior to the time the subject was in the facility through at least six months afterwards. Request that they search the records by pulling every police call made regarding the facility's physical address. Check the list for those calls regarding abuse, disturbances, thefts and similar circumstances. These may further document that the home has a problem with abuse as well as identify potential witnesses.

Conduct a previous litigation history inquiry at the Prothonotary’s office, and USDC Clerk’s office, utilizing the JIC System, or other computer based database. This will reveal any lawsuits filed against the nursing home facility or the owners of the home. If any are found, the actual file should be reviewed to better determine the facts and parties involved. The records may also list employee's names and other witnesses who may be helpful to your case. Be certain to check both criminal and civil records. Be sure to conduct a criminal history inquiry on employees having contact with the patient.

A check of the State of Delaware Secretary of State's records should also be researched. The Secretary of State will have records reflecting the corporation that owns the nursing home, the officers, addresses, date it was filed, charter number and whether or not they are currently in good standing with the State. The registered agent for service of process will also be gained.

The hospital records (CCHS or St. Francis) should be obtained and reviewed to determine the course and reasons for treatment. These should be checked and corresponded with the facility and doctor's records. If the person died in the hospital, it should reflect the actual cause. The records should be reviewed for any information concerning abuse such as broken bones, bruises, lacerations and similar identifiers.

The medical examiner's office records should be obtained and reviewed as well if an autopsy was conducted. The reports need to be cross-checked to determine the medications found in the person's body (or lack of medicine), the bruises, broken bones or similar signs of abuse. The ultimate reason for death will also be noted and should be double-checked against the facility's and your client's reasons.

Additional sources of information include families of former patients, families of current patients, equipment repair personnel, outside maintenance personnel, visitor logs, surveillance videos from CCTV security, EMT and ambulance crews, insurance companies, and even local clergy.

There is a fine line between abuse and neglect. Sometimes neglect can become excessive and reach the point of abuse. When we think of abuse, we think of someone hitting or physically abusing a person. Abuse is commonly an intentional act that causes harm and empowers another. Neglect may be an intentional, or an unintentional act, and may be based on several factors, such as the number of employees on duty, the facilities physical capability to take care of the number of patients that they are handling, or failure of equipment used to monitor a patient. The basic premise to neglect is that a person in the care of the nursing home fails to receive the necessary treatment or care that they deserve.

Det. Michael T. O'Rourke is a Member of the National Association of Investigative Specialists, The National Association of Professional Process Servers, and sustaining member of the Delaware Paralegal Association. A Court Certified Special Process Server, and a Licensed Private Investigator in DE and PA. Michael specializes in Insurance Defense and Criminal Defense. He invites your questions to:

Loss Solutions, Inc.
824 N. Market Street, Suite 425,
P.O. Box 368,
Wilmington DE 19899-0368.
(302) 427-3600.

Or you may e-mail him at

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