Investigation of a potential claim in the long-term care setting is much like that of any personal injury claim: Gathering the pertinent records, and conducting a thorough review to determine what the cause of the injuries was. However, long-term care litigation tends to be more document-intensive, as nursing home records are voluminous, hospitalizations are often lengthy, and government investigations can come from multiple sources.
The records to gather in the investigation of a potential long-term care claim include:
- The entire nursing home (or ALF) chart, including the administrative records.
- The pre-nursing home hospitalization records.
- The intermittent and subsequent hospitalization records, with color photos, and bills.
- Records from any health care providers who saw the resident outside the facility, if any.
- Any EMS records and bills from the long-term care facility.
- The facility licensure file for the residency years.
- Any AHCA surveys that were conducted during (and prior to) the residency at issue.
- Records from any entity that may have investigated, such as the ombudsman, DCF, law enforcement agencies, or AHCA complaints.
- If at issue, any x-rays. (Even if mobile x-rays are taken at the facility, these are often not contained within the facility chart.)
- Death certificate, with cause of death listed.
- Any photographs of injuries, or notes that may bear on the issues.
Once pertinent records for review are gathered, and all appropriate expert evaluations have been made, the litigation team needs to make an assessment of what claims ought to be pursued. Possible claims in the long-term care setting include claims for Resident Rights violations, negligence-based claims, as well as breach of contract claims, breach of fiduciary duty claims, and statutory claims under Chapter 415, as well as other theories of liability. However, most long-term care facility claims will fall in the category of resident right or negligence-based claims. Both resident rights claims and negligence-based claims are governed by the civil enforcement statutes in Chapters 400 and 429 of the Florida Statutes.