Scenario: A resident develops a stage 4 pressure ulcer after admission to a long-term care facility. Plaintiff counsel argues the facility failed to prevent it. Defense counsel argues the ulcer was clinically unavoidable. Both positions hinge on the same federal regulation. The question is what the regulation actually says, and how the medical record measures up to it.

To work through this one, it is time for a history lesson. Travel with me, to a time before the Federal Nursing Home Reform Amendments existed, circa 1986.

In 1986, the Institute of Medicine (IOM) published a landmark report titled “Improving the Quality of Care in Nursing Homes.” Keywords: “Quality of Care.”

The IOM report cited widespread quality-of-care problems in U.S. nursing homes and substantial concerns about the ineffectiveness and unevenness of oversight at that point in time. These same problems (pressure ulcers, dehydration, weight loss, and unnecessary restraints) drove the federal reforms that followed.

That report provided the basis for the Federal Nursing Home Reform Amendments (FNHRA), embedded in the Omnibus Budget Reconciliation Act of 1987 (OBRA ’87). Now travel forward to today.

The implementing regulation, 42 CFR § 483.25(b)(1)(i), reads: “A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable.” Two operative concepts: Prevention is the standard, and “unavoidable” is a clinically defined exception.

CMS’s State Operations Manual, Appendix PP, F-Tag F686, defines that exception precisely. A pressure ulcer is “unavoidable” when the facility:

• Evaluated the resident’s clinical condition and pressure ulcer risk factors;
• Defined and implemented interventions consistent with resident needs, goals, and professional standards of practice;
• Monitored and evaluated the impact of those interventions; AND
• Revised the approaches as appropriate.

Conversely, a pressure ulcer is “avoidable” when one or more of those four steps is missing or inadequately documented. This is the same test on both sides of a case.

For the plaintiff expert, the question is whether the medical record demonstrates all four steps. Documentation gaps, generic care plans untailored to the resident, missed reassessments after a change in condition, or interventions that were ordered but not implemented all weigh toward “avoidable.”

For the defense expert, the question is the same. When the record reflects timely Braden assessments, individualized interventions consistent with professional standards, consistent turning and skin checks, prompt escalation when early signs appeared, and revisions to the plan as the resident’s condition declined, the regulation supports a finding of “unavoidable” notwithstanding poor outcomes.

Notice what F-Tag F686 does NOT say: It does not list age, comorbidities, or frailty as automatic justification for unavoidability. And it does not say documentation gaps automatically establish avoidability either. Risk factors are inputs to the four-step assessment. Documentation is the evidence by which the assessment is judged. The expert’s job, on either side, is to apply the federal standard rigorously to what the record actually shows.

And the stakes for getting this right just went up.

In 2023, the U.S. Supreme Court decided Health and Hospital Corporation of Marion County v. Talevski, holding 7 to 2 that the FNHRA provisions at issue create rights enforceable under 42 U.S.C. § 1983. Translation: Residents of publicly owned nursing homes can now bring private federal civil rights claims for FNHRA violations, alongside the traditional state-law negligence and wrongful death actions that have always been available.

For plaintiff counsel, Talevski opened a new federal pathway. For defense counsel, it raised the exposure profile of every publicly owned facility. For experts on either side, it means the federal standard isn’t an academic reference anymore. It is an enforceable right, with a direct civil litigation pathway, that turns on whether the four-step F686 test is met in the medical record.

OBRA ’87 did not require facilities to prevent every pressure ulcer regardless of clinical reality. It required them to do the work (assess, plan, implement, revise) and to document it.

When the record shows that work was done, the regulation supports the facility’s position. When the record cannot show it, the regulation supports the plaintiff’s position. The regulation doesn’t take sides.

The record does.

Tracy Liberatore is the founder of the National Expert Academy and a pioneer of the C.L.E.A.R. Method, an expert report-writing framework developed within a working medical-legal firm. A former physician assistant with ten years of clinical practice, she later earned her law degree with valedictorian honors and spent the next decade founding and operating Med Legal Pro, where she trained and placed clinical experts for attorneys handling medical malpractice, personal injury, and nursing home negligence cases nationwide.

She is the author of From Medicine to Law: Creating Winning Legal Teams with Medical Expertise and the host of the Statutes & Stethoscopes podcast. Her writing includes work on why accomplished clinicians may struggle in expert witness roles, the future of medical legal consulting, medical errors, and attorney concerns about medical records. Her work has been featured in USA Today, MSN, and CEO Feature.

Tracy now trains licensed clinicians to write expert reports attorneys trust, request, and refer. She shares insights through her personal LinkedIn, as well as the platforms for National Expert Academy and Med Legal Pro.