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39 S. Tex. L. Rev. 1 (1997-1998)
Dealing with Nursing Home Neglect: The Need for Private Litigation

handle is hein.journals/stexlr39 and id is 13 raw text is: DEALING WITH NURSING HOME NEGLECT: THE NEED FOR PRIVATE LITIGATION DAVID F. BRAGG* I. A GREENHOUSE FOR NEGLECT ......................... 1 II. THE IMPORTANCE AND ECONOMICS OF PRIVATE LITIGATION ................................................. 3 III. INITIAL EVALUATION AND INVESTIGATION ............. 4 A . D ocum ents .......................................... 5 B. A Note on Evidence in Nursing Home Litigation ... 5 C. Investigation ........................................ 6 IV. APPLICABLE LAW .......................................... 6 A . Federal Statutes ..................................... 6 B. Federal Regulations ................................. 8 C. The Federal/State Regulatory Scheme ................ 8 D. Texas Statutory Law ................................ 9 E. State Regulations .................................... 11 V. WRONGFUL DEATH IN TEXAS NURSING HOMES ........ 12 VI. NURSING HOME CAUSES OF ACTION ..................... 15 A. Negligence/Medical Malpractice ..................... 15 B. Negligence Per Se ................................... 20 C. Deceptive Trade Practices ........................... 20 VII. CONCLUSION ............................................... 22 I. A GREENHOUSE FOR NEGLECT There are many long-term care facilities in Texas that provide quality care for their residents. However, there is also a significant number of long-term care facilities that neglect their residents, some- times to the point of death. The conditions in a typical nursing home create a greenhouse environment for neglect; consequently, neglect * J.D. cum laude 1974, Baylor University School of Law. Mr. Bragg is a member of the firm Bragg, Chumlea, McQuality & Smithers with offices in Austin and Dallas. He was the Attorney-in-Charge of Attorney General John Hill's Nursing Home Task Force in 1977-78. In 1992, Mr. Bragg was appointed by Governor Ann Richards to serve as her Citizen Trustee to investigate nursing homes across the state and those who regulate them and to make recommendations for change. In private practice since 1981, Mr. Bragg continues to handle nursing home abuse and neglect cases across the state.