I have written numerous blogs on the attempt by the nursing home industry to foist arbitration agreements on unsuspecting potential residents and their families. The fact that the United States Constitution provides for a right to trial by jury has been seen by the nursing home industry as not a right but a mere suggestion. As can be seen by the torrent of litigation, this issue is still awaiting a final verdict (pardon the pun.)
I am pleased to say that a tangential battle being fought in the nursing home litigation trenches, who can and can’t testify in a court of law on elder abuse, has received a final (or as final as one gets) verdict in Pennsylvania.
In Mclaughlin vs. Garden Spot Village there was an attempt by the nursing home defendant to prevent one of its employees from testifying in a lawsuit about nursing home abuse she observed. The employee had reported the abuse to the Lancaster County Office of Aging which was engaged in an investigation of the abuse of an older adult.
In the lawsuit arising out of this alleged abuse the nursing home attempted to block plaintiff’s counsel from taking the employee’s deposition. The nursing home defendant argued that any person who reports abuse or cooperates in an agency’s investigation of reported abuse of an older adult is disqualified from testifying in a subsequent judicial proceeding. They argued that its employee’s testimony was privileged under the Older Adult Protective Services Act.
This argument failed at all levels of the Pennsylvania judiciary. The lower court rejected the position of the nursing home. The Superior Court confirmed the lower court and noted that nothing in the act supports the nursing home’s argument. In fact, the act directly contradicts it. Now the Pennsylvania Supreme Court has weighed in by filing an Order which does not disturb the precedential decision of the Pennsylvania Superior Court.
At lease we have finality on one issue.
By Sam Abloeser