1.
REFUTING DEFENSE ARGUMENTS ©
AAJ CONVENTION
NURSING HOME LITIGATION GROUP
Roger S. Weinberg | July 2014 | www.weinberglaw.com

2.
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3.
DEFENSE WILL ATTACK ALL ASPECTS OF YOUR CASE
 Duty = Standard of Care = Safety
Rules
 Breach of Standard of Care
 Causation
 Damages

4.
1. WHAT ESTABLISHES SOC?
a) Federal law
i. OBRA. 42 C.F.R. 483—The Long Term Care Survey and the
Interpretive Guide to Surveyors. Critical that you have this
book in either paperback or electronic form. Available from
Heaton-MedPass or from the American Health Care
Association (AHCA). Often referred to as the “Watermelon
Book”
The Federal Nursing Home Reform Act or OBRA ‘87 creates a
set of national minimum standards of care and rights for
people living in certified nursing facilities.

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9.
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 CMS Long-Term Care Facility Resident Assessment Instrument (RAI)
User’s Manual Version 3.0. Available online at CMS website for free.
 Content of the RAI for Nursing Homes: The RAI consists of three
basic components: The Minimum Data Set (MDS) Version 3.0, the
Care Area Assessment (CAA) process and the RAI Utilization
Guidelines. The utilization of the three components of the RAI
yields information about a resident’s functional status, strengths,
weaknesses, and preferences, as well as offering guidance on
further assessment once problems have been identified.

10.
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Each component flows naturally into the next as
follows:
 Minimum Data Set. A core set of screening, clinical, and functional
status elements, including common definitions and coding
categories, which forms the foundation of a comprehensive
assessment for all residents of nursing homes certified to participate
in Medicare or Medicaid. The items in the MDS standardize
communication about resident problems and conditions within
nursing homes, between nursing homes, and between nursing
homes and outside agencies. The required subsets of data items for
each MDS assessment and tracking document (e.g., admission,
quarterly, annual, significant change, significant correction,
discharge, entry tracking, PPS assessments, etc.) can be found in
Appendix H.

11.
 Care Area Assessment (CAA) Process. This process is designed to
assist the assessor to systematically interpret the information
recorded on the MDS. Once a care area has been triggered, nursing
home providers use current, evidence-based clinical resources to
conduct an assessment of the potential problem and determine
whether or not to care plan for it. The CAA process helps the
clinician to focus on key issues identified during the assessment
process so that decisions as to whether and how to intervene can
be explored with the resident.

12.
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The CAA process is explained in detail in Chapter 4. Specific
components of the CAA process include:
 Care Area Triggers (CATs) are specific resident responses for one or a
combination of MDS elements. The triggers identify residents who have or
are at risk for developing specific functional problems and require further
assessment.
 Care Area Assessment is the further investigation of triggered areas, to
determine if the care area triggers require interventions and care planning.
The CAA resources are provided as a courtesy to facilities in Appendix C.
These resources include a compilation of checklists and Web links that may
be helpful in performing the assessment of a triggered care area. The use of
these resources is not mandatory and represent neither an all-inclusive list
nor government endorsement.

13.
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CAA Summary (Section V of the MDS 3.0) provides a location
for documentation of the care area(s) that have triggered from
the MDS and the decisions made during the CAA process
regarding whether or not to proceed to care planning.
 Utilization Guidelines. The Utilization Guidelines provide
instructions for when and how to use the RAI. These include
instructions for completion of the RAI as well as structured
frameworks for synthesizing MDS and other clinical
information
(http://cms.gov/manuals/Downloads/som107ap_pp_guidelin
es_ltcf.pdf)

14.
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 MDS is a statistical form used for:
 Payment processing of Medicare and Medicaid claims
 Quality of care data (CMS nursing home compare
website)
 Resident specific
 Errors occur to make NH look better. False charting?
Punitives ?
 Compare information with actual resident chart.

15.
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a) State law—Assisted living, developmental disabilities, statutes & regulations
b) Clinical practice--expert testimony required (physicians, nurses, administrators, etc.
as to what is “reasonable care”)
c) Clinical practice guidelines. From National Pressure Ulcer Advisory Panel or
American Medical Directors Association
d) Admission Contract
e) Bill of Rights
f) Marketing materials
g) Policies and Procedures of facility.
h) Corporate policies and cost reports
i) Knowledge of prior medical condition of resident on admission (hospital transfers,
etc.)

16.
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k. The “model” and 42 C.F.R. §483.25 Quality of Care---“Each resident
must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical,
mental, and psychosocial well-being, in accordance with the
comprehensive assessment and plan of care.”
l. Interpretive Guidelines for Surveyors §483.25 “In any instance in
which there has been a lack of improvement or a decline, the
survey team must determine if the occurrence was unavoidable or
avoidable. A determination of unavoidable decline or failure to
reach highest practicable well-being may be made only if all of the
following are present:
“An accurate and complete assessment” and a
“A care plan that is implemented consistently and based on information
from the assessment; and Evaluation of the results of the interventions and
Revising of the interventions as necessary.” (see §483.20)

17.
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 Deficiency surveys
 Available on CMS website as part of the nursing home compare portion.
 Admissibility issues—depends on the judge
 Get your expert to comment on specific statute violation or F-tag without
naming the deficiency.
 Depending on jurisdiction, maybe evidence of negligence or negligence
per se.

18.
A FAMOUS MENTAL HEALTH NURSE

19.
HINT:

20.
2. COMMON CLAIMS REGARDING BREACH
OF THE STANDARD OF CARE:
 Pressure Ulcers (aka decubitus ulcers, bedsores)
 Falls
 Infection/ Sepsis
 Malnutrition & Dehydration
 Elopement
 Choking
 Abuse / Assault
 Medication errors
 Failure to obtain emergency medical care.

21.
3. COMMON DEFENSES REGARDING BREACH OF THE
SOC
The injury was “unavoidable”. For Pressure ulcers they will claim co-morbitities
(Diabetes, vascular problems, etc.)They must consider the needs of each resident.
Establish that the Defendant did not comply with the process of all of the
following “model”:
 Assesment
 Care plan
 Implementation
 Evaluation
 Revision
 If they didn’t they can’t claim “unavoidable.”

22.
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Assessment. (must consider current medical condition and risk factors)
Examples of these risk factors for pressure ulcers include, but are not limited to:
1. Impaired/decreased mobility and decreased functional ability;
2. Co-morbid conditions, such as end stage renal disease, vascular disease, thyroid disease
or diabetes mellitus, etc.;
3. Drugs such as steroids that may affect wound healing;
4. Impaired diffuse or localized blood flow, for example: generalized atherosclerosis or
lower extremity arterial insufficiency;
5. Resident refusal of some aspects of care and treatment;
6. Cognitive impairment;
7. Exposure of skin to urinary and fecal incontinence;
8. Under nutrition, malnutrition, and hydration deficits; and
9. A healed ulcer. The history of a healed pressure ulcer and its stage [if known] is
important, since areas of healed Stage III or IV pressure ulcers are more likely to have
recurrent breakdown.

23.
 Planning (using RAI and other means to plan for the resident’s care)
 Implementation (a plan must be properly and consistently
implemented)
 Re-evaluation (revise or modify the plan based on what is not
working such as falls continue or a change in condition)
 v. Communication to staff and family (if staff does not
implement the plan, it is useless and a breach of the SOC)

24.
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The National Pressure Ulcer Advisory Panel suggest the following:
Risk Assessment
 Consider all bed-bound and chair-bound persons, or those whose ability to
reposition is impaired, to be at risk for pressure ulcers.
 Use a valid, reliable and age appropriate method of risk assessment that
ensures systematic evaluation of individual risk factors.
 Assess all at-risk patients/residents at the time of admission to health care
facilities, at regular intervals thereafter and with a change in condition. A
schedule is helpful and should be based on individual acuity and the patient
care setting.
 Acute care: assess on admission, reassess at least every 24 hours or sooner if
the patient’s condition changes
 Long-term care: assess on admission, weekly for four weeks, then quarterly
and whenever the resident’s condition changes
 Home care: assess on admission and at every nurse visit.

25.
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 Identify all individual risk factors (decreased mental status,
exposure to moisture, incontinence, device related pressure,
friction, shear, immobility, inactivity, nutritional deficits) to
guide specific preventive treatments. Modify care according
to the individual factors.
 Document risk assessment subscale scores and total scores
and implement a risk-based prevention plan.

26.
Skin Care
 Perform a head to toe skin assessment at least daily, especially checking pressure points such
as sacrum, ischium, trochanters, heels, elbows, and the back of the head.
 Individualize bathing frequency. Use a mild cleansing agent. Avoid hot water and excessive
rubbing. Use lotion after bathing. For neonates and infants follow evidence-based institutional
protocols
 Establish a bowel and bladder program for patients with incontinence. When incontinence
cannot be controlled, cleanse skin at time of soiling, and use a topical barrier to protect the
skin. Select under pads or briefs that are absorbent and provide a quick drying
 surface to the skin. Consider a pouching system or collection device to contain stool and to
protect the skin.
 Use moisturizers for dry skin. Minimize environmental factors leading to dry skin such as low
humidity and cold air. For neonates and infants follow evidence-based institutional protocols
 Avoid massage over bony prominences.

27.
Nutrition
 Identify and correct factors compromising protein/ calorie intake
consistent with overall goals of care.
 Consider nutritional supplementation/support for nutritionally
compromised persons consistent with overall goals of care.
 If appropriate offer a glass of water when turning to keep patient/resident
hydrated.
 Multivitamins with minerals per physician’s order.

28.
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Mechanical Loading and Support Surfaces
 Reposition bed-bound persons at least every two hours and chair-
bound persons every hour consistent with overall goals of care.
 Consider postural alignment, distribution of weight, balance and
stability, and pressure redistribution when positioning persons in
chairs or wheelchairs.
 Teach chair-bound persons, who are able, to shift weight every 15
minutes.
 Use a written repositioning schedule.
 Place at-risk persons on pressure-redistributing mattress and chair
cushion surfaces.

29.
 Avoid using donut-type devices and sheepskin for pressure
redistribution.
 Use pressure-redistributing devices in the operating room for
individuals assessed to be at high risk for pressure ulcer
development.
 Use lifting devices (e.g., trapeze or bed linen) to move persons
rather than drag them during transfers and position changes.
 Use pillows or foam wedges to keep bony prominences, such as
knees and ankles, from direct contact with each other. Pad skin
subjected to device related pressure and inspect regularly.
 Use devices that eliminate pressure on the heels. For short-term use
with cooperative patients, place pillows under the calf to raise the
heels off the bed. Place heel suspension boots for long-term use.

30.
 Avoid positioning directly on the trochanter when using the side-lying
position; use the 30° lateral inclined position.
 Maintain the head of the bed at or below 30° or at the lowest degree
of elevation consistent with the patient’s/resident’s medical condition.
 Institute a rehabilitation program to maintain or improve
mobility/activity status.

31.
Education
1. Implement pressure ulcer prevention educational programs that are structured, organized,
comprehensive, and directed at all levels of health care providers, patients, family, and caregivers.
2. Include information on:
a. etiology of and risk factors for pressure ulcers
b. risk assessment tools and their application
c. skin assessment
d. selection and use of support surfaces
e. nutritional support
f. program for bowel and bladder management
g. development and implement individualized programs of skin care
h. demonstration of positioning to decrease risk of tissue breakdown
i. accurate documentation of pertinent data
3. Include mechanisms to evaluate program effectiveness in preventing pressure ulcers.

32.
 “The resident or family didn’t want the proper care to be performed.”
 Advanced Directives or Living Wills
 DNR. This is not meant to not provide care
 “The family agreed to hospice or comfort care only”. Really?
 “Refusal to eat or drink”. Why? Food taste issues? Dementia? Medications? Was food within
reach? Other factors?
 “Refusal of a PEG tube for feeding”. Show resident could eat slowly or with assistance. Proper
food consistency (pureed, etc.). Often facility wants PEG for their own convenience or due to
short staffing.
 “Refusal to send to a hospital”. Blame the family routine. Examine the Admission contract for
authority to send 911 or obtain healthcare without family authorization. Explore false
charting.
 “Non-compliance”. Must discover why non-compliant. What is the underlying reason? Back to
the model.
 Show facility didn’t have resources or understaffed
 Again, show that the model wasn’t performed.

33.
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“We promote independence and mobility”. Often part of “We can’t
monitor for falls 24/7”. They accepted resident and agree to provide for
his/her safety and welfare. Follow the model. Did they follow the RAI
process? were risk factors properly assessed? Was care planned for?
Were interventions in place so that falls were preventable and injury
avoided or lessened. Expose understaffing.

34.
POSSIBLE FALL CARE PLAN INTERVENTIONS, IF RISK
FACTORS IDENTIFIED:
 Call buttons. Staff Must respond promptly
 Alarms (bed, chair, doors)
 Bed rails
 Hallway railings
 Seating available to rest
 Leaving alone in bathroom
 Lap belts
 Gait belts
 Sufficient and trained staff for transfers

35.
 Lift devices (Hoyer, etc.)
 Lowering of bed
 Floor Mats
 Assistive devices (walkers, special canes, wheelchairs, etc.)
 Eliminate environmental issues (socks, slippery floor, area rugs)
 Monitor medications for gait, balance issues and frequent urination.
 Address medical conditions affecting balance and gait, depression,
mobility, etc. per RAI process.

36.
 Claim “OBRA” is not meant to be standard of care. They are
guidelines for Medicare/Medicaid reimbursement”---False.
 Violation of Statute as evidence of negligence or negligence per se.
 Can read substance of pertinent regulation without identifying it
and get deponent to admit or by Request for Admission. Examples
include the language of 42 CFR 483.25(c) or F-314 for pressure
ulcers.

37.
F314
§483.25(c) Pressure Sores
Based on the Comprehensive Assessment of a resident, the facility must
ensure that-
(1) A resident who enters the facility without pressure sores does not develop
pressure sores unless the individual’s clinical condition demonstrates that
they were unavoidable; and
(2) A resident having pressure sores receives necessary treatment and
services to promote healing, prevent infection and prevent new sores from
developing.

38.
Intent: (F314) 42 CFR 483.25(c)
The intent of this requirement is that the resident does
not develop pressure ulcers unless clinically unavoidable
and that the facility provides care and services to:
• Promote the prevention of pressure ulcer
development;
• Promote the healing of pressure ulcers that are
present (including prevention of infection to the extent
possible); and
• Prevent development of additional pressure ulcers.

39.
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“We didn’t chart, if there wasn’t any change”. No
charting by exception. If not charted it wasn’t done.
Ask deposition questions related to importance of
charting, shift change, documentation of ADLs,
medications, requirement of resident record, etc.

40.
A FEW DEPOSITIONS QUESTIONS
 Are you a skilled nursing facility?
 Under Federal and State law, your facility must provide the highest
standards of physical and mental care?
 And you are required to complete an MDS 3.0 at various intervals?
 The MDS must be accurate, right?
 In order to complete the MDS properly, you must follow the instructions
of the RAI Manual, right?
 And as part of the RAI Manual, you are required to assess a resident,
determine triggers and develop a care plan for the needs of each
resident?
 And this care plan needs to be implemented by your staff?
 And this care plan needs to be reviewed for its effectiveness?

41.
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 And if the plan is not effective there needs to be a revision of the care
plan based on a re-assessment?
 And these assessments were saved in the patients chart?
 And the entire staff is responsible for ensuring that the care plan is
implemented?
 When there is a significant change in condition, the care plan needs
to be changed, correct?
 When the resident continued to fall, that was a significant change in
condition, right?
 And there was no change in the assessment and care plan?
 And until the resident fell for the 5th time and broke his leg, there was
no new assessment or revision of the care plan, right?
 And there were no new interventions or implementation of a revised
care plan prior to the 5th fall?

42.
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 And if you didn’t develop a care plan (or
revise the care plan) and implement
interventions, how can you say the fall was
unavoidable?

43.
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44.
4. COMMON DEFENSES REGARDING
CAUSATION OF INJURIES OR DEATH
 “The resident condition was caused by co-morbidities or pre-existing
conditions”. They will try to blame the resident for the harm. These are
merely risk factors that must be planned for properly. Establish at
depositions that the underlying medical issues are not the cause of the
injuries. The facility accepted the resident and said they could care for
them. They continued to accept funds, even though they couldn’t properly
care for the resident. Again the model, marketing materials, policies and
procedures and other documents need to be used to establish that the
facility didn’t implement a proper care plan. Look to what actual care was
being provided. Is it in accordance with the Physician’s Orders?

45.
 “The treatment the plaintiff alleges, that needed to be done,
wouldn’t have made a difference in the outcome.” This is a typical
medical negligence defense. Expert testimony is required. In
addition to the expert saying why and how it would have made a
difference, emphasize the lack of respect, dignity and the pain and
suffering endured by the resident. While these may be damage
arguments, the lack of care caused the suffering. Get the jury angry
at the actions of Defendant.

46.
 “The family didn’t get an autopsy. You can’t prove cause
of death”. Grieving family. Didn’t want body mutilated.
Wasn’t thinking about a lawsuit then. Other reasons
why didn’t want autopsy.

47.
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48.
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49.
5. COMMON DEFENSES REGARDING
DAMAGES
 “She was 92 and lived a long life”. But she may have lived even longer.
Make it about how she died, not that she died. We are all going to
die. Dignity and Respect. Emphasize what has been taken away and
how important that is to an elderly person, such as the ability to walk.

50.
 “The family doesn’t deserve to get money”. They don’t get
along. They rarely visited their mom, etc. These are issues that
are real and juries must feel good about giving the family
money in a death case. These topics need to be dealt with on
case intake. There may be conflicts, chose your clients wisely.
 I usually get an Agreement with the family as to the
percentage each gets in the event of a recovery.

51.
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 c. “If the care was so bad, why didn’t someone complain”. Often the
family is unaware of the lack of care until it is too late. Sometimes after
death. There is often a cover-up. They have a duty to notify the family
when there is a significant change in condition.

52.
 “If the care was so bad, why didn’t you move her”. Another attempt
to blame the family. Explain that the family did complain about the
care and was given assurances the care would be better. The family
had nowhere to move her or was looking.

53.
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54.
CONTACT THE LAW OFFICES OF ROGER S.
WEINBERG, LLC
502 WASHINGTON AVENUE, SUITE 320 TOWSON, MD 21204
EMAIL: RSW@WEINBERGLAW.COM
PHONE: (866) 529-5839
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