Pennsylvania Provides Some Welcome News for Long Term Care Providers

Surveys or statements of deficiencies have traditionally been used as a weapon by plaintiffs’ attorneys in nursing home professional liability cases. They have been used in billboard and print advertisements to solicit business and have also been used at trial to try to establish that a facility breached the standard of care. Interestingly, many times the surveys that plaintiffs seek to admit into evidence at trial do not even relate to the resident in question. Understandably, the impact of a bad survey, even if unrelated to the resident in the litigation, can prejudice the jury and its perception of the care that has been rendered by the facility.

Pennsylvania has joined the ranks of several states that have now banned the statement of deficiencies’ use in advertisements and at trial to be evidence of compliance or non-compliance with any legal standard of care. On February 27, 2014, the Pennsylvania Department of Health stated in part, “The Statement of Deficiencies is not intended to be evidence of compliance with any legal standard of care in third party litigation. The Department also does not intend for its inspection reports to be used in advertisements for legal services or as a basis for solicitations of any type.”

This is a very significant and positive development for Pennsylvania providers and may help to reduce the increase in professional liability litigation against skilled nursing facilities in the Commonwealth. It may also help to level the playing field at trial by requiring plaintiffs to sue a deviation from the standard of care through other methods.

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