When To Mediate Your Nursing Home Abuse Case

Timing is important for a successful mediation. Each case must be looked at independently, but the following are some guidelines that can be used in most cases.

First, whether you are the plaintiff or the defense you have to determine what records you need. From the plaintiff's perspective, this would include at a minimum the SNF records, DHS records, including prior citations and inspections, medical records pertaining to care and treatment. From the defense perspective, plaintiff's medical records and bills, prior medical records related to the subject injuries and any and all documents supporting plaintiff's contentions.

Next, you must determine early on what depositions are really needed to seriously discuss the case. The defense will almost certainly want to have the plaintiffs depositions done. Usually this is sufficient. From the plaintiff's perspective, a lot depends on whether the abuse involves a discreet incident or a pattern of alleged abuse. If the case involves a singular event, the witnesses to that one event may be all that is needed. If the case involves repeated neglect over a long period of time, the director of nursing, the administrator and the main charge nurses may be critical to having meaningful settlement discussions.

I'm a big believer that the plaintiff and defense counsel should talk early on about what would be needed to having a meaningful mediation. There's no harm, and often times great benefit to openly discussing what each side needs to evaluate the case. Then this way, when you get to the mediation, you won't hear the other side saying they can't evaluate the case because more information is needed.

A big item that should be addressed early on is liens. These cases generally involve payments by MediCare and MediCal. It often takes 4 to 6 months to get lien information from these agencies. The case clearly cannot be settled until these lien issues are understood. Since it takes such a long time to get the information, requests to the appropriate agency should be initiated as soon as practicable.

Prior to mediation, the plaintiff's injuries should be stabilized. Again, one cannot properly evaluate the claim until one understands whether there has been a complete recovery or whether there will be residual problems. Similarly, one needs to know whether plaintiff's medical treatment is done or whether future treatment may be required. If this is an issue, the defense may need to have a medical examination completed.

Finally, it's extremely important that some settlement negotiations have been attempted. At a minimum the plaintiff should have conveyed his demand. This should be done early enough before the mediation so that the insurance company for the defense can committee the matter. It's also important in that it sets an initial expectation as to where the case can be settled; whether the parties are being realistic; or perhaps whether the receiving party should re-evaluate its position.