Nursing Home Rule Threatens the Safety of Loved Ones

Christopher Nace

Attorney
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A midnight regulation pressed through by the Bush Administration stands to threaten the safety of loved ones who reside in nursing homes. I have discussed midnight regulations on three occasions, most recently here. The regulation in question makes it more difficult for attorneys representing those injured in nursing homes to acquire documents so that they can learn information about negligent nursing homes:

The rule change (45 CFR part 2) classifies state nursing home inspectors and Medicare and Medicaid contractors as federal Health and Human Services employees, and allows them to testify in third-party lawsuits only with the approval of the federal agency's head.

Moreover,

"What we've seen as a practical matter is that state employees can't be called to testify, and the defense bar is now trying to preclude the admission of those state investigation reports as hearsay," said Mark Kosieradzki, a personal injury attorney in Plymouth, Minn., who specializes in nursing home litigation.

Without access to documents, inspectors' notes or the ability to depose state inspectors, attorneys can't find out the names of witnesses to alleged incidents of neglect or malpractice, Kosieradzki said.

What is troubling about this is that negligence lawsuits are supposed to be a search for the truth. But by hiding documents and witnesses under the guise of a federal regulation, nursing homes have no interest in searching for the truth, but rather covering up their discretions.

While no one plans on bringing a lawsuit when they move in to a nursing home, we know that these facilities--which are businesses and seek to make profits--have a long history of negligent care. With this new rule, it will be more difficult for families to hold these profit-seeking businesses accountable for negligence.