Depositions Nursing home litigation is unique. Nursing homes are
not hospitals. Te care provided in nursing homes primarily is custodial in nature, involving assistance with the resident’s activities of daily living. It is this care, or lack thereof, that is the typical subject of nursing home litigation. Assisting the residents with their activities of daily living would include dressing, bathing, grooming, eating, toileting, turning and repositioning,
transferring, and ambulation. Tis care is
provided by certified nursing assistants. Nursing homes must comply with federal and state
regulations governing long term care in order to obtain and maintain their license to operate the facility and to received Medicaid and Medicare reimbursement for the services they provide to the residents. It is critical that the resident’s attorney understands these regulations. Tese regulations should be the catalyst for discovery in a nursing home case and must be used during the depositions of witnesses. OBRA regulations establish the necessity for adequate and appropriate assessment of residents,
individualized care
plans, and quality of care goals for each resident. Compliance with these regulations require that the facility provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. Te goal of the nursing home resident’s lawyer during deposition must be to determine from the witnesses whether the care provided by the staff conformed to this goal. If the care was lacking, it must be also shown that the care deviated from the nursing standard of care. All nursing facilities must designate a physician to serve as a medical director of the facility.6
Te regulations require
that the medical director oversee the implementation of policy and procedure in the facility and coordinate the entire medical care of the residents. Typically, medical directors also serve as the attending physician for some or all of the residents in the facility. Te medical director is paid directly by the facility for the services rendered. Tis contract usually indicates that the medical director is an independent contractor. You should inquire during deposition as to the extent of the relationship between the medical director and the facility to establish that the medical director is an agent of the facility. Te director of nursing is a registered nurse who is
responsible for supervising the care of all residents in the facility.7
Te scope of the director of nursing’s responsibility
may vary greatly depending on whether the nursing home is part of a large chain or owned by a small nursing home corporation. In a chain owned home, the director of nursing may actually have very little involvement in the day to day care of the residents whereas in a small home the director
6 COMAR 10.07.02.11. 7 COMAR 10.07.02.12.
48 Trial Reporter / Winter 2011
of nursing may be a very hands-on supervisor. Regardless of the type of home, the director of nursing is responsible for the development and implementation of nursing policy and procedure. In your case, you may find that the director of nursing had little or no direct involvement in the care of the resident and indeed may not even remember them. Nevertheless, you should be familiar with the chart and ready to confront the director of nursing with indications of sub- standard care, violations of regulations and violations of the facility’s own policies and procedures. In preparing for the deposition of the attending
physician, the resident’s attorney should not be surprised if the attending physician was rarely present in the nursing home. Nevertheless, the attending physician is responsible for ensuring that the resident’s needs were being met and for issuing appropriate orders concerning the resident’s care. Physician orders are carried out by the nursing staff who are the “eyes and ears” of the attending physician. Regulations require that each resident must be seen by a physician at least once every thirty days.8
Other than this mandated monthly
visit, the attending physician depends on the staff to keep him or her informed of the resident’s condition. Regulations require that a facility be administered in
a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident. Te administrator is responsible for the management of the facility and appointed by the governing body.9
An
administrator may have no medical training whatsoever. As such, the administrator may or may not be able to comment on the care that was provided to the resident. To effectively and efficiently depose witnesses in a
nursing home case, you must become intimately familiar with the state and federal regulations. Illicit from the defendant’s key witness is the fact that regulations relating to the care of residents also constitute the nursing standards of care. You can then show that a violation of the regulations was also a violation of the nursing standard of care in your case thus establishing the breach of duty leading to causation and damages.
Deposing the Experts At its essence, a nursing home action is a case of
malpractice. Accordingly, one of the most important decisions of your case will be the selection and subsequent depositions of experts. Like a traditional malpractice case, you will be required to present expert medical testimony about causation and the standard of medical or nursing care at issue. Your case
8 COMAR 10.07.02.11. 9 COMAR 10.07.02.07.
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