Chapter 60 - § 60.8 • ADMISSIBILITY OF STATE NURSING HOME SURVEYS

• Jurisdiction: Colorado

§ 60.8 • ADMISSIBILITY OF STATE NURSING HOME SURVEYS

One of the most heavily litigated areas of a nursing home suit is the admissibility of the defendant nursing home's state surveys. State surveys include the deficiency reports issued by the CDPHE during its complaint investigations as well as during its annual nursing home survey. If the survey involves the plaintiff nursing home resident, or similar incidents involving prior residents, plaintiff's counsel may seek admission of the survey into evidence.

At present, there are no Colorado appellate court decisions on the issue of whether state surveys are or should be admissible in a nursing home negligence trial. Several foreign jurisdictions have considered the issue, and most have found that the relevant surveys are admissible.

Among these is Montgomery Healthcare Facilities, Inc. v. Ballard, 565 So.2d 211 (Ala. 1990), in which the Alabama Supreme Court held that health department deficiency reports of a nursing home are admissible to show, among other things, notice that the nursing home had care and staffing problems that it had not resolved prior to admitting the plaintiff to the facility. In Advocat, Inc. v. Sauer, 111 S.W.3d 346 (Ark. 2003), the Arkansas Supreme Court reached a similar conclusion.

In Rose Care, Inc. v. Ross, 209 S.W.3d 393 (Ark. App. 2005), the Arkansas Court of Appeals reached the same result. It held that state health department surveys were admissible for the purpose of demonstrating notice of unresolved care issues.

In Horizon/CMS Healthcare Corp. v. Auld, 985 S.W.2d 216 (Tex. App. 1999), the Texas Court of Appeals held that the admission of nursing home surveys was proper when a nursing home's defense in the case included testimony that the nursing home provided good care.

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