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Appellate Court Issues Missing Evidence Instruction in Nursing Home Care Act Case

By Chris Galanos

In Graves v. Rosewood Care Center, Inc. the Illinois Appellate Court was called upon to decide whether the trial court properly issued a missing evidence instruction due to the nursing home defendant’s alleged failure to produce a portion of the resident’s chart. The instruction in question (IPI 5.01 entitled “Failure to Produce Evidence or a Witness”) instructed the jury that if the nursing home failed to offer evidence within its power to produce, the jury could infer that the evidence would have been adverse to the nursing home if the jury believed each of the following:

  1. The evidence was under the control of the nursing home and could have been produced by the exercise of reasonable diligence.
  2. The evidence was not equally available to the Plaintiff.
  3. A reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him.
  4. No reasonable excuse for the failure has been shown.

At issue in Rosewood was the alleged absence of a certified nursing assistant’s flow sheet in the nursing home resident’s chart. Defendant’s Director of Nursing testified that although the facility’s policy was to place such a flow sheet in a resident’s file, it is possible that it did not get filled out in the Plaintiff’s case because the Plaintiff was only at the facility for a very short time. She also testified that it was possible that the sheet was filled out, and was simply not placed into the resident chart. At trial, the court allowed the instruction based upon this testimony.

On appeal, the facility asserted that Plaintiff never presented any definitive evidence that such a sheet existed or that defendant was in control of the document. The Appellate Court gave this argument short shrift and found that the testimony of the Director of Nursing was sufficient for a fact finder to conclude that the form was “routinely prepared.” In reaching this conclusion the court relied on prior appellate decisions in Tzystuck v. Chicago Transit Authority (IPI 5.01 given when CTA employees testified that an equipment inspection request form was routinely prepared following accidents involving a CTA bus and should have been prepared in the case before the court) and Roeseke v. Pryor (the trial court did not err in giving missing evidence instruction where defendant failed to produce night manager’s report which was admittedly in existence at one time).

The problem with the Rosewood court’s analysis is that it appears to rely exclusively on the Director of Nurse’s testimony that the flow sheet was routinely prepared. The Court did not seem to consider the Director of Nursing’s additional testimony that the flow sheet might never have been created in the Plaintiff’s case due to the residents short stay at the facility. This fact would seem to distinguish Graves from Tzystuck and Roeseke, but again, the Court glossed over the issue and upheld the trial court’s ruling allowing the instruction.

From a defense perspective the issuance of the instruction in Graves raises concerns because the instruction was given despite the lack of evidence that the document had actually ever existed. Nursing home resident charts are rarely perfectly complete. This decision could open the door to future plaintiffs requesting the missing evidence instruction over any purported inconsistencies in the chart, even if there is nothing to suggest that documents are actually missing. Although the instruction requires the jury to find that the evidence did exist before they are allowed to draw an adverse conclusion, the mere fact that it is issued, in and of itself, could bias a jury against the facility.

Originally published in the Summer 2012 edition of Quinn Quarterly.

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