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Through Trial Behavior’s extensive pre and post trial research in cases involving nursing homes or skilled nursing facilities, we have gained insight into the common issues that affect juror decision-making in nursing home cases.  

Negligent care in a nursing home is an emotional hot button for many jurors 

Many jurors have pre-existing negative views about nursing homes.  In addition, many jurors have had negative personal experiences with nursing homes and family members. For many, placing a family member in a nursing home is an emotional and guilt-inducing experience. Many jurors feel they are abandoning their relatives and running out on their moral commitment to family. They comfort themselves with the belief that their family member is getting better care than they themselves could provide. When the issue of negligent care in a nursing home arises, it touches this emotional sore spot and raises jurors’ worst fear about what might happen to a family member—or to jurors themselves as they age and require more extensive care.

These fears cut across many typical demographic and attitudinal divides between plaintiff-oriented and defense-oriented jurors. Jurors in an aroused emotional state have a more difficult time listening closely to case facts and focusing on the law in deliberations. 

Jurors feel that nursing homes executives are getting rich off of negligent care

Many jurors feel that skilled nursing facilities put profits before patient care.  Jurors believe that company executives are driving Porsches and vacationing in Europe while elderly residents are receiving less than adequate care in their facilities.  Accordingly, it is important to debunk the notion that the people at the top are living the high life.  The defense must show jurors that people do not get into the nursing home industry to get rich –– they are in this industry because they care about people.  Developing a good company story will help to lessen jurors’ anger.

Punitive damages are seen as a way of sending a message to the industry in general 

Jurors see large punitive damage awards as an important way of sending a message to the industry.  They see inadequate care of a loved one as both common and inexcusable.  Many believe that the only way to get that message across is to make the damage award large enough so that everyone takes notice. 

	Supervision:  One of the key topics that arise repeatedly in nursing home cases is the issue of supervision.  Jurors feel that residents in nursing homes are not adequately supervised, and thus are both neglected and left to their own devices, typically leading to risky and/or dangerous scenarios.  Jurors feel that placing a loved one in a skilled nursing facility is a way to ensure their loved ones are surrounded by others.  Often, the decision to place someone in a nursing home comes after the realization that it is unsafe to leave this elderly patient at home by himself or herself.  Accordingly, when jurors feel that nursing home residents are not adequately supervised, they are angered and are more likely to award higher monetary damages.
	Level of care:  It is essential to delineate for jurors the distinction between a “Skilled Nursing Facility” and a hospital.  Many jurors believe the standard of care in a nursing home is the same as that in a hospital and become angered when they feel that care, overall, is lacking.  Educating jurors on the differences between these two establishments is critical to success and lower the bar as to the level of care that is expected.
	Documentation:  Lack of documentation implies lack of care to jurors.  A defense argument that we have seen in many nursing home cases is “staff only document when something is wrong.”  Jurors do not buy this argument.  Jurors feel a lack of documentation equates with negligent care.  If a doctor orders that a wound on a patient be check twice a day for three weeks, jurors expect to see sixty-three entries in the patient’s chart commenting on the status of that wound.

Facilities need to be aware of the role that poor documentation usually plays in plaintiff verdicts and to do what they can to train staff to document appropriately. At trial, the defense needs to make explicit how unrealistic many jurors expectations about documentation really are both by explaining standards of documentation in the medical field and being very explicit about how much time it would take to document at jurors’ expected level. For example, tell jurors, “If it takes five minutes to document routine wound care, and the facility has 60 patients, 30 of whom require similar routine care, that would equal 300 minutes of documentation time a day—or 5 hours, just to document routine care in which nothing remarkable was observed. Would you rather have your nurse documenting something that requires no action or taking care of patients? You can’t have it both ways. ”The defense should make clear that standards of documentation have evolved in medicine to focus on recording relevant information and ensure that maximum time can be spent caring for patients, not for records."

Violation of company policy and procedure:  Jurors become the most frustrated and angered when a company violates its own policies and procedures.  Jurors have little tolerance for these violations and punish companies with punitive damage awards accordingly.  It is essential when defending a nursing home case to let jurors know that the corporation takes responsibility for their mistakes, is taking or has taken steps to rectify the situation, and is continually striving to improve the corporation as a whole.