How Nursing Homes Use “Privilege” Claims to Prevent Families from Learning About Abuse

Ohio Nursing Home Guide

It is unknown how many of our vulnerable elderly fall victim to neglect or abuse each year since such actions are easily hidden from view and underreported. In fact, according to the National Center for Elder Abuse (NCEA), 84 percent of abusive situations involving older adults go unreported or unrecognized.

    When a patient is seriously injured or dies while in the care of a nursing home, families understandably expect answers. Unfortunately, the reality is that many nursing homes will use every legal tactic available to them to prevent the truth from coming out. In many cases, this includes citing various legal “privileges” to prevent the family from receiving documents that might prove allegations of nursing home abuse and neglect.

    Cleveland Court Refuses to Reconsider Prior Decision Compelling Nursing Home to Disclose Records to Deceased Resident’s Family

    A recent decision by a state appeals court here in Cleveland, Howell v. Park East Care and Rehabilitation, helps to illustrate the challenges families face when seeking justice for their loved ones. This case involves a wrongful death and medical negligence claim against a rehabilitation center. The victim in this case was a resident of the defendant’s home. During her stay, the family alleged, she was “assaulted” and “brutally attacked” by another resident.
    More precisely, the victim’s son said the other resident “choked” his mother and “pounded her head on the floor several times” while the nursing home staff “stood by” and took no action. The victim passed away several months later as a result of the “physical and emotional injuries” suffered in this attack, the son’s lawsuit stated.
    The issue before the appeals court involved a dispute over the son’s request for the attacking patient’s medical records. The other patient was also deceased by the time litigation commenced, and there was no probate estate opened from which the son could seek consent for disclosure of the records.
    And as you might have guessed, the defense was not eager to turn over those records without a fight. Before the trial judge, the nursing home argued that the attacker’s records were “privileged” under HIPAA, the federal medical records privacy law, as well as several other Ohio statutes. Both the trial court and later the Ohio Eighth District Court of Appeals rejected the privilege claims.
    In a 2018 opinion, the Eighth District noted HIPAA “allows disclosure of protected information in the course of any judicial or administrative proceeding in response to a court order.” Nor did Ohio law protecting the confidentiality treatment of nursing home records apply, as that privilege “could not be asserted by the estate of a former resident.”
    Following the Eighth District’s decision, the trial court conducted an additional in-chambers review of the attacker’s medical records to determine if any specific information could still be privileged. Dissatisfied with the outcome of this review, the defense again asked the Eighth District to hold it could not be compelled to provide the medical records of a former patient who was not a party to the litigation and had not consented to disclosure. The Eighth District rejected this appeal, explaining it was bound by the “law of the case doctrine,” i.e., its prior ruling on this subject.

    Contact the Cleveland Nursing Home Abuse and Neglect Lawyers at Tittle & Perlmutter Today

    Litigation disputes such as the one described above can extend the time it takes to get a claim to trial by months or even years. This is why it is so essential to work with a qualified Cleveland nursing home abuse and neglect lawyer who can guide you through the process. Contact Tittle & Perlmutter at (216) 308-1522 if you need to talk with an attorney today.

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