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

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, June 21, 2022

Recorded event now available

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Course Materials

This CLE webinar will guide personal injury and medical malpractice attorneys in nursing home abuse and negligence cases on how to nimbly handle state surveys and reports, patients' Minimum Data Set (MDS) required assessments, the Omnibus Budget Reconciliation Act (OBRA) and related regulations, and policy and procedures manuals to take compelling nursing home depositions. The panel will discuss how these documents can be used to establish standard of care and deviations from that standard. Attendees will also hear from defense counsel about best strategies for defending depositions involving these documents.

Description

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.

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Outline

  1. Preparing for deposition
    1. Selecting deponents
    2. Obtaining the documents
  2. Deposing the witness
    1. Minimum Data Set (MDS)
    2. Omnibus Budget Reconciliation Act (OBRA)
    3. State surveys
    4. Policies and procedures manuals

Benefits

The panel will review these and other key issues:

  • What is an MDS, and what does it require?
  • 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?

Faculty

Fisher, Gillian
Gillian A. Fisher
Of Counsel
Wilson Elser

Ms. Fisher devotes her practice to the defense of complex, high-exposure medical malpractice matters on behalf of...  |  Read More

Holbert, William
William F. (Bill) Holbert
Managing Partner
Prieto Marigliano Holbert & Prieto

Mr. Holbert's practice has focused on long term care and medical malpractice litigation for over two decades. He is...  |  Read More

McCrink, Katherine
Katherine L. McCrink
Partner
Wilson Elser

Ms. McCrink focuses her practice on the defense of medical malpractice, nursing home liability and general liability...  |  Read More

Sabo Gaden, Kelly
Kelly Sabo Gaden
Partner
Levin & Perconti

Ms. Sabo Gaden is an advocate for victims of nursing home abuse and neglect and medical malpractice. With more than a...  |  Read More

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