I have previously blogged on the nursing home industry’s attempt to keep cases out of the court system and its perceived plaintiff-friendly juries, and force all litigation into the far more defense friendly arbitration system. The nursing home industry has attempted to foist arbitration agreements on unsuspecting residents and family members. These attempts have been repudiated for the most part.
This blog presents an even more shocking scenario. A nursing home has attempted to prevent one of its own employees from testifying in a judicial proceeding about abuse they found. A nursing home has argued that any person who reports or cooperates in an ongoing investigation of reported abuse of an older adult is disqualified from testifying in a subsequent judicial proceeding.
The Pennsylvania Superior Court in McLaughlin v. Garden Spot Village rejected a nursing home defendant’s argument that its employee’s testimony was privileged under the Older Adults Protective Act.
In McLaughlin, decedent Dorothy L. Brace was sexually assaulted by defendant Glenn Hershey while the two were residents of Maple Farm, according to the panel’s opinion. Hershey pleaded guilty to involuntary deviate sexual intercourse and was sentenced to eight to 20 years in prison. Brace died 10 months later of unrelated causes and the co-administrators of her estate – Vicki L. McLaughlin and Carol L. MacConnell – sued Garden Spot and Hershey, alleging the nursing home knew the threat that Hershey, a registered sex offender, posed to Brace.
Carrie Kneisley, an employee of the nursing home reported the abuse to the Lancaster County Office of Aging.
When the plaintiffs sought to depose Kneisley and ask, among other things, what she told the Lancaster County Office of Aging, Garden Spot filed a motion for a protective order, claiming Kneisley’s testimony was privileged.
The Superior Court found that there is nothing in the act that prohibits a nursing home employee from testifying in a civil action, and that nothing precludes third parties such as plaintiffs from gathering information by deposing an employee.
Nursing homes are not only trying to control where cases are heard, but are now trying to keep their own employees from testifying. What will the nursing home industry try next?