Depositions dehydration, weight loss, infections, wandering, falls,


National Legal Research Group CHARLOTTESVILLE, VIRGINIA


inadequate staffing and overall neglect and abuse. Before an attorney defends or conducts any depositions, he or she should be familiar with the state and federal regulations governing the care requirements. Tese regulations help shape the work-up of the overall case and hones the fact and expert depositions. Federal nursing home regulations are contained in 42 CFR Section 483, subpart b. Maryland State nursing home regulations are set forth in the Code of Maryland Regulations in Title 10 Department of Health and Mental Hygiene Subtitle 07. Tese regulations mandate, in part, that: “Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”3


Te regulations cover most quality of care issues that


will be at issue in a lawsuit including activities of daily living, pressure sores, accidents, hydration and nutrition.4 Careful review of the nursing facility chart is one of the most important tasks to accomplish prior to defending family members at deposition or scheduling any defense depositions. A resident’s nursing home chart includes complex documentation. Te chart


includes admission


records,


of the physician and nurse conducting the admission assessments are useful on the issue of competency. Most arbitration agreements are presented to the


resident, a family member or a designee of the resident during the signing of admission paperwork or shortly thereafter. Noting the deposition of the admissions coordinator or admissions assistant who presented the document to the signator can provide valuable information to challenge the enforceability of an arbitration agreement. Such discovery may assist in developing a record supporting an argument that the arbitration agreement is procedurally and substantively unconscionable or is a contract of adhesion. As Maryland courts interpret the enforceability of arbitration agreements in accordance with traditional agency principles,2


determining


the nature and scope of claimed actual or apparent authority can be developed through depositions of nursing home employees.


Pre-Deposition Preparation While the allegations involved in any lawsuit are


fact intensive, nursing home litigation generally involves allegations pertaining to skin wounds,


2 Dickerson v. Longoria, 409 Md. 46, 972 A.2d 861 (2009). 46 Trial Reporter / Winter 2011 malnutrition,


discharge and transfer records, records from the transferring facility, physician orders and progress notes, nursing notes, monthly summaries, medication records, treatment records, dietary records, therapy records, MDS (Minimal Data Set), RAPs (Resident Assessment Protocols), skin care records and care plans. All these documents are essential to understanding the resident’s condition and the care rendered by the staff. Te chart is an essential tool in identifying the employees


who rendered care to the resident. Nursing staff are identified in the nurse’s notes, medication administration records, activities of daily living flow sheets and MDS. Te nursing staff who rendered daily care to residents include registered nurses, licensed practical nurses, licensed vocational nurses, and certified nursing assistants. Registered nurses are usually charge nurses or head nurses. Te registered nurses, licensed practical nurses and licensed vocational nurses are responsible for resident care,


administering medication, evaluating


resident’s conditions and chart documentation. Certified nursing assistants, also referred to as aides, are employed to assist residents with daily care and activities of daily living. Generally, certified nursing assistants are not responsible for chart documentation. Other health care professionals who may render care to the residents include dieticians, physical therapists, occupational therapists, speech therapists and social workers. Te importance of deposing these staff


members depend on the allegations made in the case. 3 42 CFR Section 483.25. 4 42 CFR Section 483.25.


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