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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, June 22, 2023

Recorded event now available

or call 1-800-926-7926

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.


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.



  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


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?


Cox, Mark
Mark A. Cox

Mark A. Cox

Since 1990, Mr. Cox has helped recover millions of dollars for those injured and the families of those killed by the...  |  Read More

Fisher, Gillian
Gillian A. Fisher

McGivney Kluger Clark & Intoccia

Ms. Fisher's practice includes talc and asbestos products liability/toxic tort, medical malpractice, and...  |  Read More

McCrink, Katherine
Katherine L. McCrink

Wilson Elser

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

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