Nursing Home Must Disclose Personnel Records, Pay Fine

JANUARY 3, 2000 VOLUME 7, NUMBER 27

Velma Buchanan was a resident of Country Care Nursing Home in La Vernia, Texas. Shortly before her death, she was the victim of a sexual assault. Her assailant was identified as sixteen-year-old Travis Moorhead, an unlicensed nurse’s aide at Country Care.

Ms. Buchanan’s sister Charlotte Alexander brought a lawsuit against Country Care for the alleged assault. In the course of that litigation, her attorneys requested that Country Care provide copies of Mr. Moorhead’s complete personnel file. The nursing home provided a set of personnel records, and assured the opposing lawyers and the court that it had provided the entire file.

Some months later, Country Care’s Director of Nursing was deposed in connection with the litigation. She acknowledged that there were personnel records indicating that Mr. Moorhead had been disciplined for prior misbehavior, but that they were kept in a separate file.

As it turned out, Country Care maintained a personnel review committee which kept its own records of disciplinary proceedings. Believing that its disciplinary records could thus be kept confidential, Country Care’s Quality Assurance Committee (which conducted all employee disciplinary proceedings) stamped all its files with the legend “PRIVILEGED COMMITTEE INFORMATION” and maintained the records in a separate, locked file at the nursing home. Copies of adverse disciplinary records were simply not kept in each employee’s personnel file.

When Ms. Alexander’s lawyers learned of the secret disciplinary files, they immediately asked the Texas court to order release of the records and fine Country Care for its failure to completely disclose its records. The court agreed, brushing aside any claims of privilege, and ordered release of the adverse records on Mr. Moorhead; it also imposed a $10,000 fine on Country Care for failure to fully disclose its records in the first instance.

Country Care appealed to the Texas Court of Appeals in San Antonio. The Court of Appeals held that “the personnel file” “means every record kept on the employee in question. The entire file may not be kept in the same location and not every document in the file may be discoverable. …Country Care should not be able to effectively hide a portion of the personnel file or employment record by simply naming it something else.” In re LaVernia Nursing Facility, Inc., December 30, 1999.

The result in Arizona would likely be similar. While quality assurance records can be kept confidential in some circumstances, the nursing home’s failure to acknowledge the existence of the records and assert the privilege would almost certainly lead to the same conclusion in an Arizona court.

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