OBRA as standard of care

Sometimes Defendants try to file an early motion to dismiss on Plaintiff’s negligence per se cause of action. Here is a recent case that will help you overcome Defendant’s Motion to Dismiss.

“It is obvious that as a resident of the nursing home owned by Mariner, McLain’s father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint, and which we assume to have occurred for purposes of a motion to dismiss, were among those these same statutes and regulations were designed to prevent. Likewise, the complaint’s allegations of violations of the same statutes and regulations would be competent evidence of Mariner’s breach of duty under a traditional negligence action. The trial court therefore erred when it granted Mariner’s motion to dismiss McLain’s negligence per se and negligence causes of action. McClain v. Mariner, 631 S.E.2d 435 (Ga. 2006)

Golden Villa v. Smith, 674 S.W.2d 343 (Tex. App. 1984)
OBRA regulations are admissible since a violation of rules which specify a maximum standard of care can provide a plaintiff with a prima facie case of negligence against a nursing home.