Victims of nursing home abuse or neglect and their families may be unaware of the fact that nursing facilities have a comprehensive list of federal regulations and guidelines that they must follow when it comes to caring for residents. This body of federal regulations is called the Omnibus Budget Reconciliation Act of 1987, or OBRA, and details the rules that nursing homes must use on a daily basis.
These regulations provide an excellent framework when it comes to establishing the standard of care that a Missouri or Illinois nursing facility is supposed to follow — and help prove instances of nursing home abuse or neglect when they occur.
The OBRA guidelines that nursing facilities must follow to avoid nursing home abuse or neglect include:
• Assessment of residents. This initial assessment of care needs and risk factors must happen each time a resident is admitted — or re-admitted — to a nursing home;
• Planning. Nursing facilities must then establish a specific care plan based upon a particular resident’s medical condition and needs;
• Implementation. Facility managers must then communicate that specific care plan to the nursing home staff members who will be responsible for carrying it out. Additionally, the nursing home is responsible for ensuring a sufficient number of qualified and trailed staff to implement the care plan;
• Reevaluation. Regular reevaluation of the specific care plan must be take place in order to establish whether the steps being taken are adequate for the resident’s needs, or if changes to the plan should be made; and
• Communication. Nursing facility staff members should remain in regular communication with the resident, the physician involved in that patient’s care, and the resident’s family members while all of these steps are ongoing.
Defendant nursing facilities will often take certain stances to try and mitigate or eliminate their own liability in a case of nursing home abuse or neglect.
Some common defenses include:
• Unavoidability.
A nursing home will often claim that the resident’s injury or death was unavoidable. However, in order to succeed in this defense, the facility must show evidence that the nursing home complied with the established standard of care and OBRA regulations when caring for the resident.
• Comorbidities.
A nursing facility will also usually claim that whatever preexisting medical conditions the resident already had were the cause for any subsequent injuries that occur. However, just because a patient has a risk factor for certain injuries to occur does not mean it was the proximate cause, especially in cases of nursing home abuse or neglect.
• Blaming the Family or Resident.
Another common nursing home abuse or neglect defense tactic is to point the finger of blame at family members, or even the residents themselves. The most effective way to counter this underhanded tactic is to stick to establishing whether or not the standard of care was followed. Any actions of the family or residents will be irrelevant if the nursing facility did not follow the required standards.
• Nursing judgment.
A nurse accused of deviating from the standard of care may claim they used their best nursing judgment in the situation, but showing the violated established guidelines can defeat that claim.
• OBRA is not the actual standard of care.
Some nurses may claim that they do not have to follow OBRA in all cases since it just deals with Medicare and Medicaid reimbursement, but the vast majority of nursing home administrators and directors of nursing will admit that the facility is required to comply with OBRA guidelines.
• Poor recordkeeping doesn’t mean poor care.
This can be countered by demonstrating how vital proper documentation is for continuity of care and to determine whether a particular care plan is actually effective.
Families who feel that their loved one has been the victim of nursing home abuse or neglect may be entitled to seek financial damages, including medical expenses or even pain and suffering compensation, by following a personal injury lawsuit. A Missouri or Illinois civil court will hear this type of case, and my St. Louis personal injury law firm is experienced in establishing the standard of care that a nursing home facility should have followed in providing care. This can be crucial if a family or resident hopes to succeed at a nursing home abuse or neglect case.
Disclaimer: The choice of a lawyer is an important decision and should not be based solely upon advertisements.
Source: “Also Featured: Weaving a nursing home deposition strategy,” by Steven M. Levin and Jordan S. Powell. December 2012, Volume 48, No. 12.