Nursing Home Depositions: Establishing Liability Using State Surveys, MDS, OBRA, Policies Manuals

Nursing homes are highly regulated through comprehensive federal and state laws and regulations in order to participate in Medicare and Medicaid programs. Plaintiffs in nursing home neglect and abuse cases can use these regulations and the reports and records they mandate to expose and illustrate the applicable safety rules, alleged violations or deviations from those rules, and how those deviations resulted in harm.

Nonetheless, nursing home defendants often argue that applicable rules and regulations deal only with reimbursement conditions and do not establish a standard of care. Similarly, defense counsel often posit that the nursing home's policies and procedures are merely guidelines, not requirements.

Armed with state surveys, MDS, the defendant's policies and procedures manual, and deep knowledge of OBRA, plaintiff's counsel can take powerful depositions in a nursing home case. Defense counsel must be able to anticipate and counter any possible overstatement or misapplication of the relevant rules.

Listen as this expert panel of plaintiff and defense nursing home litigators explores how to make the most of the applicable rules and regulations and best strategies for limiting the damage they can cause.

I. Preparing for deposition

A. Selecting deponents

B. Obtaining the documents

II. Deposing the witness

A. Minimum Data Set (MDS)

B. Omnibus Budget Reconciliation Act (OBRA)

C. State surveys

D. Policies and procedures manuals

The panel will review these and other key issues:

• What is an MDS, and what does it require? What are the latest rules and regulations for state surveys?
• What reports are signed under penalty of perjury by the nursing home?
• What makes an injury unavoidable, and what are just excuses?
• What happens when nursing homes fail to advise families that they lack the resources to care for the patient?
• Do policies and procedures manuals reflect standards of reasonable care?