In representing families of elderly patients in nursing home negligence cases, I have found these cases to be unique and much different than medical malpractice cases against physicians.
Nursing home negligence cases are unique for two reasons. First, these cases are unique because of the clients. Generally, I represent families who entrust the care of dependent loved one, who they could not care for, to professionals with the expectations that the professionals would treat these loved ones with the utmost care. Second, these cases are unique because the United States government has provided a comprehensive body of regulations that nursing homes must comply with and follow.
The Omnibus Budget Reconciliation Act of 1987 (OBRA) sets forth the regulations a nursing home must comply with in order to participate in Medicare and Medicaid programs. Moreover, these regulations are often mirrored in state regulations and the nursing home’s own policies and procedures. The regulations are very simple and straightforward. For example, there is a regulation which basically states that a care plan must be developed and the nursing home must ensure that an adequate number of qualified, appropriately trained and supervised staff follow the care plan.
I use these regulations as the basis for my questioning of nurses and nurse’s aids at deposition. I use these regulations to establish the standard of care and how the standard of care was breached by the nursing staff.