NURSING HOME ABUSE

Nursing home abuse and neglect are not cases of medical malpractice

Abstract

Nursing home cases can be difficult to analyze and assess. Medical records can be difficult to obtain because of HIPAA regulations. Furthermore, even after you get these records you need a dedicated team willing to put in the time necessary to revised thousands of pages of documentation just to see ii there is a legitimate basis to ma1e a complaint. After doing all of that, the real work begins.

Nursing home abuse and neglect are not cases of medical malpractice

Defendants regularly file motions to dismiss alternative theories of liability in response to nursing home neglect complaints pursuant to Tennessee Rule of Civil Procedure 12.02(6) (West 2006). These motions generally state that the facility in a nursing home neglect case is rendering medical care, which falls solely within the Medical Malpractice Statute.

The defendant's intent is clear. They want to enjoy the statutory protections of TC.A. 29-26-115, ef. seq. without the requirement of being held to the same standards as health professionals. For example, the Medical Malpractice Statute has a stringent expert requirement wherein the expert must be licensed to practice in Tennessee or a contiguous border state within I year preceding a wrongful act. T.C.A. 29-26-115(b).This expert must be used to prove every element of a cause of action if the case was solely considered a medical malpractice act.

It is an effective defense tactic because of the perception that the reason people are at nursing homes is to receive medical care. So, the argument would be that the only cause of action is medical malpractice. The appeal of this defense is its surface simplicity and appeal.The reality is that nursing home cases involve a complex interaction of medical, corporate and contractual issues. This article will address three ...