anced diet that meets the daily nutritional and special dietary needs of each resident.” (a) A qualified dietitian must be employed in some capacity. (c) Menus must satisfy nutritional needs of residents, be prepared in advance, and be followed. (d) Food must be nutritional, flavorful, and have a normal appearance. (f) There must be at least 3 meals per day. (i) The food, storage, preparation, dis- tribution, service and disposal must be sanitary.


In Maryland, see COMAR 10.07.02.13: (A) which pro- vides that food services must be provided, and must be done in accord with these regulations; (C) requires the supervisor to be a di- etitian, or for regularly scheduled consultations from dietitians or other qualified personnel; (E) sets minimum standards for the diet’s adequacy; (F) provides for therapeutic diets prescribed by physicians; and, (G) mandates 3 meals per day, with specific requirements for dinner.


5. Battery By Other Residents (a) 483.15(e) – resident has the right to receive reasonable ac- commodation of individual needs as long as it does not interfere with the health or safety of the resident or other residents.


In Maryland, see COMAR 10.07.02.22 (A), which forbids a facility from accepting or keeping a patient who is dangerous to others, property, or has symp- toms of mental illness.


6. Abuse By Staff (a) 483.13(a) – resident has the right to be free from any physi- cal or chemical restraint not required for treatment


(b) 483.13(b) – resident has the Summer 2007


right to be free from “verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.”


(c) 483.13(c) – the facility must develop and use written plans prohibiting mistreatment, ne- glect, and abuse


(d) 483.13(c)(1) – the facility must refrain from (i) using verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion, (ii) not employ individuals with a suspect past. (iii) The facility must also report any knowl- edge of unfit employees.


See also Md. Health-Gen Code Ann. § 19-343(b)(2)(iv) (grant- ing the resident freedom from mental and physical abuse) and COMAR 10.07.09.08 (5) (a)-(f) (providing freedom from: (a) physical abuse; (b) verbal abuse; (c) sexual abuse; (d) physical or chemical restraints used for discipline or convenience; (e) mental abuse; and (f) involuntary seclusion).


Early Resolution Can Lead to Decreased Litigation Costs and Satisfied Clients


Nearly all counsel recognize the sig- nificant time and costs associated with the prosecution and defense of a nurs- ing home negligence case. The medical records are often voluminous and te- dious to decipher, and medical expert reviews are costly. The attendant costs to both sides can increase significantly where multiple medical conditions are involved, requiring multiple medical specialists to review the records and develop standard of care and/or causa- tion opinions. In addition, the number of nursing home staff members who must be deposed to prepare a claim for trial may also significantly increase the litigation costs incurred by all parties. Where the facts and preliminary expert opinions lead to an early conclusion that


Trial Reporter


(1) resolution by dispostive motion is unlikely, (2) both sides will be able to present a prima facie case and (3) the claim will almost certainly go to the jury, the mutual exchange of informa- tion coupled with an understanding of the standard of care issues may permit the parties to resolve a claim before sig- nificant costs are incurred engaging in protracted pre-trial discovery. An early resolution certainly cannot occur in all cases. However, in those cases where li- ability and damages assessments can be concluded before significant costs are expended, the likelihood of achieving an early resolution to the satisfaction of all parties may be greatly enhanced.


About the Authors


Scott Krause is a shareholder at Ec- cleston and Wolf, P.C. During his tenure with the firm, Scott has handled litiga- tion matters in a wide-variety of practice areas including the defense of health care professionals, legal malpractice defense, products liability defense and general casualty matters. Scott has also represented a variety of professionals in the defense of board licensing actions. Scott is a 1994 graduate of The Catho- lic University of America, Columbus School of Law.


Thomas J. Althauser is a supervising attorney and senior shareholder at Ec- cleston and Wolf, P.C. Tom’s practice is concentrated in the field of insur- ance defense law, with an emphasis on the defense of professionals including architects, engineers, health care profes- sionals, accountants and lawyers. He also defends a variety of claims involving serious personal injuries and defective products. Tom is a 1988 graduate of the University of Maryland School of Law (with honors), and a member of several professional associations including the Professional Liability Underwriters So- ciety and the Defense Research Institute. In 2007, Tom was named as one of the Best Lawyers in America (Professional Malpractice).


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