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Nursing Home Litigation and Residents' Rights Statutes

By Joseph L. DeMarzo and Dana Parker

In the recent past, nursing home residents had difficulty in recovering money damages against those facilities. In 1989, Congress enacted its Omnibus Budget Reconciliation Act of 1987, which was a major attempt at reform in the federal regulation of nursing homes. This initiative was intended to dramatically improve the health and safety of nursing home residents through extensive regulations, including the “Residents Bill of Rights,” new care standards and new enforcement mechanisms. See 42 U.S.C. '' 1395, 1396 (2000).

Mirroring the federal statute, many states have created a statutory right of action under which individual residents of long-term care facilities may bring suit. The purpose of these new statutes is to encourage increased compliance with existing statutory standards of care through private legal action. As a result, a cause of action based on a violation of statutory rights has become popular with the plaintiff's bar. The question is, are such statutorily created causes of action the boon many plaintiffs believe them to be?

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