A Practical Guide to Nursing Home Cases

Reviewed by Falin McKenzie

Originally published in the July 2021 edition of Trial News, a monthly publication from the Washington State Association for Justice

Nursing Home Cases by Mark Kosieradzki and Joel Smith was an easy to read, logically laid out text, directed toward and written for the practitioner who has never handled a nursing home case before. It is not a primer for a brand new attorney. It is best suited for an experienced personal injury or medical malpractice practitioner who is looking to take on nursing home issues as a new practice area. Many regulations that govern nursing home reporting and requirements are federal. The sections in the text that deal with federal regulations are comprehensive and easy to understand. However, the text is not state-specific. Therefore, a careful review of Washington specific statutes and case law is vital before taking on one of these types of cases. No matter what state you are practicing in, nursing homes and assisted living facilities owe a duty of care to their residents and patients.

The authors practice together in Minneapolis, Minnesota at Kosieradzki Smith Law Firm. Each recommendation the authors make comes with practical advice and a clear path to execution. The authors carefully outline intake, investigation, discovery and potential defenses for the most common Nursing Home injuries: assault, pressure injuries, infections, medication errors, elopement/wondering, dehydration and malnutrition, and falls/drops. Each outline is wrapped in a story about a call coming in to the attorney’s office. This perspective of working out if there is a case from the initial call was very helpful for me.

For those that do not feel confident trying their hand on such a case solo, Kosieradzki and Smith recommend associating with other attorneys. They outline how to do so equitably and ethically and provide guidance for memorializing such an agreement.

Another sensitive topic that Kosieradzki and Smith address here is the question of, who is the client? In any case it is important to establish an attorney client relationship with clarity. In nursing home cases that can be especially tricky because often the victim of abuse or neglect is either deceased or does not have the capacity to hire counsel. Again utilizing skillful storytelling, Kosieradzki and Smith use examples to guide the reader through navigating this thorny subject. Who is your client? If the victim can’t hire you then who can, under what authority, and to whom do you owe a duty?

The last 300 pages of Nursing Home Cases is made up of detailed appendices with forms addressing each type of nursing home injury including complaints, discovery, example deposition questions, motions and briefing. Not only is there a rich cache of resources in the appendices, the text itself is full of practical resources including a handy example letter to opposing counsel addressing a request for a hold harmless agreement. While the information contained in this book is carefully curated, I would caution the faint of heart; this book contains gruesome and heart-wrenching stories. Along with documents, letter samples and pleadings you will meet clients and family members that have been through horrific circumstances. If you were not ready to pick up your gladiator sword and do battle against the negligent nursing home, you will be after chapter one of this book.

Nursing Home Cases was overall very useful and I would certainly recommend it. The only critiques I have are superficial. The subtitle of the book, "When care givers stop caring," is, in my opinion, a little over the top. It gives the impression that nursing home cases are about individuals. In reality, as the book expertly lays out, these cases are often about lack of training, poor staffing, and systemic facility issues.



Nursing Home Cases by Mark Kosieradzki and Joel Smith