Virginia: Nursing Homes – a Lawyer’s Fall

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The December 2012 issue of Trial covers nursing home litigation. A feature article is “Weaving a NURSING HOME DEPOSITION STRATEGY.” Id. at 40-41. “When it comes to proving violations of the safety rules and resulting harm to the nursing home residents, you need to know the right questions to ask the defense witnesses, as well as how to dissect common defenses.” Id. at 40.

First, “Weaving” teaches that depositions must establish “standard of care” by developing the codified federal and state regulations and possibly the mirroring nursing home’s policies and procedures, per the following basic model: Assessment, Planning, Implementation, Reevaluation, and Communication. Id. at 41-42. Second, depositions must deconstruct the following general common medical malpractice defense arguments: (1) unavoidability (2) pointing the finger at the family or resident; (3) nursing judgment; (4) OBRA is not the standard of care; (5) policies and procedures are only guidelines; (6) poor documentation does not mean poor care; (7) custom and practice as evidence that care was provided; and (8) the unprepared witness. Id. at 42-44.

Third, depositions must marquee “systematic failures.” Id. at 44. “Once the deponent admits to a misstep in the nursing home model, the defense can no longer claim the injury was unavoidable.” Id. at 42.

Also, Trial’s “Verdict & Settlements” in December 2012 reported “Negligent Assistance to Nursing Home Resident.” A jury awarded $1,500,00.00 in a medical malpractice case of wrongful death. Id. at 10.

In the case reported, an 88 year-old died from complications of a patient fall. The facility nurse failed to take proper fall risk precautions and then to provide medical attention timely. Id.

Happy holidays!