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Call to Schedule a FREE In addition to studies and publications, violations of the
Nursing Home Reform Act (OBRA 87) can be woven into an expert’s testimony to support his/her opinions as to what composes the standards of care that have been breached. OBRA 87 created a national minimum set of standards of care and rights for people living in certified nursing facilities. Te legislation focuses on the basic rights of nursing home residents, including: the right to be safe, the right to be free of unnecessary chemical or physical restraints, the right to perform daily living activities (such as eating, bathing, walking) absent medical reasons, the right to safely maintain or bank personal funds, the right to stay in the home absent non-payment or the presentation of a danger to themselves or others, the provision of opportunities inside and outside the home for the mentally handicapped, the provision of uniform standards for homes receiving payment from Medicare and Medicaid, and the provision of various remedies should the nursing home fail to adhere to any of the requirements. Te regulations set forth in OBRA 87 are a set of
baseline requirements, not a ceiling to which nursing homes aspire. Tese regulations have affected the manner in which inspectors investigate complaints and monitor facilities. Your expert’s testimony cannot solely rest on an inspector’s violation report or his own observation of violations of these regulations
through his review of the records. However, OBRA 87 and any resulting reports are additional pieces of documentation and support which, when appropriate, can be used to bolster your case and your expert’s opinions before the court.
C. The Application of Federal Substantive Law and Your Expert in Federal Court Nursing Home Claims
In the majority of cases, Maryland law will be applied to the substance of the expert’s opinions that are rendered in a nursing home claim in federal court. Whether it be diversity jurisdiction or the federal government as a defendant, if the claim is a state tort/medical malpractice claim, substantive Maryland law is applied throughout the case, including the rendering of substantive expert testimony. An independent federal question of law is uncommon in nursing home claims. Most federal courts have held that the violation of the federal regulations for nursing homes, including OBRA 87, do not give rise to an independent cause of action. However, you might find yourself in a court that does permit this independent action. You might also end up handling a claim that involves any number of federal questions including: a fraudulent Medicare billing scheme, the denial of benefits by a facility that handles ERISA regulated employee benefit plans, or some other federal
Trial Reporter / Fall 2011 27
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