• Occupational Therapy notes • Social Worker notes • Nursing notes • Outside consultants • Transfer and discharge summaries into the facility
• Admission records from another facility
While there are multiple events or
factors that may cause a fall, a common defense tactic is to assert that the resident first suffered an unpredictable medical event that caused the fall. An example asserted in one of my cases was that the resident suffered a heart attack that caused her to fall. A careful review of the medical and nursing records along with expert testimony can often refute these assertions. A breach of duty or standard of care
requires expert testimony using both statutory and clinical means. Experts and state surveyors often refer to the violations in separately numbered “F tags”. The State Operation Manual,
Appendix P and PP provide further statutory duties.18
When the State of
Maryland conducts either a complaint survey or annual inspection survey of a nursing home, deficiencies are stated with reference to the F tags in lieu of citing the Code of Federal Regulations citation. Various publishers have at- tempted to put many of the statutory references together in one publication for practitioners.19 Once a plaintiff ’s attorney has made
an initial determination that the claim has some merit, expert testimony by physicians, nurses, administrators, etc. will be needed to address the specific facts of each potential claim. Most falls
18
CMS Publication #100-07; Code of Federal Regulations, Title 42, Volume 3, Part 483, Sections 150-158 and Sections 489.100- 489.104
19
See Long Term Care Regulatory Guide to OBRA Regulations and Interpretive Guidelines, Heaton Resources, Med-Pass, Inc. for a good reference manual.
20 years. 150 experts. 30,000 cases.
Aquatics
Aquatics, environmental health and safety experts and facility operators, accident reconstruction experts; Certifi ed by National Swimming Pool Foundation, National Recreation & Park Association
• Reconstruction of drownings, diving injuries, falls
• Facility construction, design, and operation
• Lifeguard actions and oversight
• Analysis of chemical handling, disease transmission, and
indoor air quality • Regulatory compliance
do not warrant the high expense and amount of time to litigate these claims. The more difficult cases, and those which should be rejected by plaintiff ’s counsel, are those with few risks factors, no his- tory of previous falls and cases where the facilities did have some planning and interventions. Those cases where trauma or fractures cause severe pain, injury, death, a change in the resident’s quality of life or cause other debilitating condi- tions should be pursued from a legal standpoint seeking compensation. The procedure for filing a claim in Maryland against a nursing home or assisted living facility is provided for in the Annotated Code, Courts and Judicial Proceeding Article 3-2A and 3-2C (Health Care Al- ternative Dispute Resolution). Failure to follow the strict statutory sections may result in dismissal of a claim for com- pensation. For cases where the expenses and damages may not warrant sufficient involvement by an attorney, the family should be instructed to file complaints with government agencies, so future care may be improved. In summary, by analyzing the specific facts of a resident’s case leading to se- vere injury and determining whether the proper assessments, care planning, implementation, documentation and statutory and clinical standards were met, an attorney should be able to weed out the cases which have merit and should be pursued. n
About the Author
Roger Weinberg is currently on MTLA’s Board of Governors and is a member of MTLA President’s Club as a “Founder.” Mr. Weinberg was the organizer and served as chair of MTLA’s Nursing Home Litigation Section from 2001 to 2004. He is a member of AAJ‘s (ATLA’s) Nursing Home Litigation Section. His practice includes cases involving serious per- sonal injuries, wrongful death, medical malpractice, assisted living and nursing home abuse, neglect and negligence.
Engineers, Architects, Scientists & Fire Investigators 800-813-6736
www.robsonforensic.com 28 Trial Reporter Summer 2007
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