South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Nursing homes continue to object and try to prevent residents from getting copies of medicaid and medicare cost reports despite the fact that this are public documents and federal regulations require the disclosure of the documents.  When the nursing home objects, inform the Court about the specific regulation requiring disclosure:

42 U.S.C. §1395i-3(g)(5)(A) which states,

Each State, and the Secretary, shall make available to the public–

(i) information respecting all surveys and certifications made respecting skilled nursing facilities, including statements of deficiencies, within 14 calendar days after such information is made available to those facilities, and approved plans of correction,

(ii) copies of cost reports of such facilities filed under this subchapter or subchapter XIX of this chapter,

(iii) copies of statements of ownership under section 1320a-3 of this title . . .
 

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Florida's "right to know" constitutional amendment that allows patients to check records of medical mistakes by health care providers doesn't apply to nursing homes according to the Florida Supreme Court.

The decision in Benjamin v. Tandem Healthcare, Inc. came in a lawsuit over the death of Marlene Gagnon, a nursing home resident who choked to death on food specifically served to her against her doctor's orders.

The decision allows the nursing home to hide relevant and material information from her estate.  This includes the nursing homes nondisclosure of an incident report on Gagnon's death.  The amendment itself says it covers "health care facilities" and "providers" as defined in general law.

The high court arbitrarily decided that state law doesn't include nursing homes among health care facilities.  "They basically said nursing homes do not provide health care," said Jeffrey Fenster, a lawyer for Gagnon's five children. "This strips constitutional rights from the elderly. ... This is just an invitation to more elder abuse."

The amendment never was intended to apply to nursing homes because it refers to "patients" and people in nursing are considered "residents" under state law, said Tony Marshall , association senior vice president.

The amendment was put on the ballot through a petition drive sponsored by consumer advocates. It was one of three initiatives dealing with medical malpractice adopted in 2004, including one that bars doctors with three malpractice judgments from practicing. The third, promoted by the Florida Medical Association, limits how much lawyers can collect in fees.

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We have uploaded a great Order compelling the production of an incident report.  The defense attempted to claim that the incident report was work-product.  The Court rightly disagreed.  All nursing homes are required by state and federal regulations to investigate and prepare incident reports when an incident causing injury to a resident ha occurred.  This is done in the ordinary course of business and not as result of anticipation of litigation.  These incident report should be produced but defense attempts to hide these incident reports from the families of residents.

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