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New Law Makes Prosecution of Nursing Home Cases More Difficult

February 26, 2009
by JRosenfeld
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Unknown to most, in the later days of his term, former-president George W. Bush signed off on a new law that effectively clamps down on the publics' access to nursing home inspection reports. The law was signed into effect without congressional debate or public knowledge.

In the past, nursing home inspections could be accessed by families to help determine if a nursing home was responsible for a suspicious injury or death of a loved one. Ultimately, the inspection reports were helpful in nursing home litigation as the information helped establish liability on the part of the nursing home. Similarly, if the report did not contain enough information to prove liability of a nursing home, a decision could be made that there was no sense in pursuing the matter.

Under the new law, state nursing home inspectors and Medicare and Medicaid contractors are considered federal employees, a group usually insulated from provided information in a lawsuit. Additionally, state health departments and contractors are not permitted to participate in private lawsuits involving facilities that receive government funding (virtually all nursing homes) without permission from the head of the Department of Health and Human Services. Now, in order for litigants to access the inspection reports, they must get a court order to access the information.

"This change hurts nursing home residents and their families by allowing bad practices to be kept in secret by nursing homes and inspectors," according to Eric M. Carlson, an attorney with the National Senior Citizens Law Center in Los Angeles. "Government inspectors have the right to go into nursing homes and investigate, and they learn things that the residents and families otherwise could never find out."

If anything, the end result of this law is that it encourages nursing home litigation. With limited information regarding the circumstances relating to an unexplained injury there will be little choice other than to file a lawsuit to access that information.

Jonathan Rosenfeld is a lawyer who represents people injured in nursing homes and long-term care facilities. Visit his personal blog at www.nursinghomesabuseblog.com.

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