O'Brien and Ryan, LLP - Attorneys at Law
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Spotlight On: Nursing Home Litigation

At first glance, lawsuits against nursing homes and other long-term care facilities are virtually indistinguishable from traditional medical malpractice cases. Expert testimony is used to support an allegation that the care and treatment of healthcare professionals fell below the applicable standard of care, causing harm to the resident. However, beneath the surface are myriad issues which distinguish this emerging area of practice.

Unlike medical malpractice actions, where the issues usually focus on individual events, such as a surgery, doctor’s visit, or the failure to order a test, nursing home litigation often focuses on systemic care provided over an extended period of time. Nursing homes are interdisciplinary healthcare centers where numerous individuals come together to provide care and treatment to residents in accordance with physicians’ orders. For example, a nursing home suit involving the development and progression of a pressure ulcer might focus on the actions of the registered nurses who developed the resident’s care plan, the licensed practical nurses who provided wound treatments, the certified nurse’s assistants who turned and repositioned the resident, and the dieticians who oversaw the hydration and nutrition of the resident. Individual or collective lapses by these individuals could give rise to liability for the overall facility.

Another unique aspect of nursing homes are the state and federal regulations which prescribe – both broadly and specifically – the care to be given to residents. These regulations provide a host of challenges to nursing homes facing civil litigation. State agencies have the authority to inspect nursing homes in an effort to identify violations of these regulations. Plaintiffs’ counsel, in turn, frequently use a resident care violation found by the state as a starting point for litigation. It remains an open question whether the results of these inspections are admissible at trial. In some states, including New Jersey, residents have been given the statutory right to privately enforce nursing home regulations through a distinct cause of action. In other states, plaintiffs’ counsel attempt to use the regulations to either establish the applicable standard of care or as evidence of negligence or even negligence per se.

Given some notable successes by plaintiffs’ counsel across the country, along with an aging population, it seems likely that the number of nursing home actions will continue to rise. While experience with medical malpractice litigation is instructive, courts and litigants need to be aware that nursing homes are unique organizations, which present novel issues of procedure and evidence.

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