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Issues in Nursing Home Litigation: Negligence Per Se

Below is a brief discussion of one of the primary legal issues being addressed in nursing home litigation in Pennsylvania: negligence per se.

Negligence Per Se

In an effort to improve the quality of care provided to residents of nursing homes, Congress enacted the Nursing Home Reform Act as part of the Omnibus Budget Reconciliation Act of 1987. OBRA and the NHRA redefined the regulations set forth by the federal government for state participation in the Medicare and Medicaid program. In order for a state to receive federal reimbursement under Medicare/Medicaid, the federal regulations require the state to establish an approved plan for medical assistance in accordance with the federal guidelines. To accomplish this, each state must promulgate its own statute and regulations for its long-term care facilities.

As a participant in the Medicare/Medicaid programs, Pennsylvania has complied with these federal statutes and regulations by enacting the Pennsylvania Health Care Facilities Act. The Act provided the Pennsylvania Department of Health with the power and duty to promulgate rules and regulations of long-term care facilities (i.e., nursing homes, personal care homes, assisted living facilities). The Department of Health utilized this power and promulgated licensing regulations for long-term care facilities. Thus, long-term care facilities must be in accordance with both the Health Care Facilities Act and the regulations regarding licensure.

Plaintiffs are alleging claims under the legal doctrine of negligence per se based on violations of the federal and Pennsylvania statutes and regulations. Essentially the doctrine of negligence per se adopts the statute or regulation as the standard of care, so that a violation of such statute or regulation establishes a breach of the standard of care. Thus, if a long-term care facility is found to be in violation of any of the aforementioned statutes or regulations, plaintiffs are claiming that the long-term care facility breached the standard of care as a matter of law.

The determination by courts of whether or not violations of the federal and Pennsylvania statutes constitute negligence per se is very unsettled in Pennsylvania. With the drastic increase in nursing home litigation, it will not be long before this issue is ultimately submitted to the Supreme Court of Pennsylvania for a final decision.

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