Nursing home surveys can be very helpful to plaintiffs in a nursing home negligence case. The surveys are done by a state agency to ensure that the nursing home is maintaining a safe and caring environment for its elder residents. If a nursing home is found to have violations, they may either appeal the results or institute a plan for correcting the deficiencies. Obviously records of an unbiased state agency noting violations of the nursing home can in some ways make or break the plaintiff’s case. Because of their importance, it is essential that plaintiffs know how to get them into evidence over objections such as hearsay.
The first and most obvious response to a hearsay objection in regards to admitting nursing home surveys is to state that the surveys are not hearsay. The Missouri Judge’s Bench Book defines hearsay as, “Hearsay is evidence of an out of court statement made by someone other than the testifying witness and offered to prove the truth of the matter asserted.”[1] Kansas offers a similar definition to this.[2] The reports are often not hearsay, because they are not asserted to prove the truth of the survey itself. Instead they may be used to show the nursing home received notice of violations (non-hearsay)[3][4] Likewise, the reports can be used as impeachment evidence against the nursing home.[5][6] Both of these uses of reports are not hearsay, and thus admissible.
Even if the surveys are being used to assert the truth of the matters contained in them, they may still be admissible. The hearsay rule contains many exceptions. The fact that the surveys are official records is likely grounds for them to be admitted in Missouri[7] and Kansas.[8] The nursing home’s response to the survey, if it acknowledges the truth of the report (i.e. a plan to correct deficiencies), can also be a grounds for getting the survey admitted.[9][10] These exceptions should allow surveys to be admitted in most cases.
Finally, surveys may be admitted through an expert witness. In Missouri, “[t]he facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject.”[11] In Kansas the rule is very similar.[12] If the expert relies on the surveys, they may very well be admissible due to this. It would be on the opposing party to show that the surveys are not “reasonably relied upon.” Given that they are done by an unbiased government agency, this is likely to be a large burden. Even if they are not admissible through the expert though, surveys can almost assuredly be used as non-hearsay or exceptions to hearsay.
[1] https://www.courts.mo.gov/file.jsp?id=38925, Chapter 11.7
[2] Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. Kan. Stat. Ann. § 60-460
[3] https://www.courts.mo.gov/file.jsp?id=38925 Chapter 11.7
[4] State v. Race, 293 Kan. 69, 76, 259 P.3d 707, 713 (2011)
[5] https://www.courts.mo.gov/file.jsp?id=38925 Chapter 11.11
[6] Kan. Stat. Ann. § 60-460(a)
[7] Mo. Ann. Stat. § 490.680 (West)
[8] Kan. Stat. Ann. § 60-460(o)
[9] State v. Brown, 833 S.W.2d 436, 438 (Mo.App. W.D.1992)
[10] Kan. Stat. Ann. § 60-460(g-h)
[11] Mo. Ann. Stat. § 490.065(3) (West)
[12] Kan. Stat. Ann. § 60-458 (West)[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]
