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Nursing Home Must Disclose Personnel Records, Pay Fine

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.