Elder Abuse and Nursing Home Injuries
Overview
Sadly, when people age, they become more vulnerable to abuse, neglect, and exploitation. Some older people opt to move into nursing homes or long term care facilities to ensure that they are well cared for, and will be protected from the effects of their deteriorating physical and/or mental conditions. In these settings, however, older people are sometimes actually physically and/or psychologically harmed by the negligent or intentional acts of their caregivers.
Many people in the U.S. discount the feelings and rights of the elderly because they associate aging with physiological, psychological, and social disability; however, this attitude is unwarranted and unfair. Senior citizens should be allowed to live out their lives free from pain, suffering, and distress caused by the negligence or abuse or others. One could argue they have an even stronger right to live in peace and comfort than any other segment of society, given the contributions they have made to society over their many years.
In institutional settings, several factors have been shown to contribute to the abuse or neglect of residents, including: poorly qualified and inadequately trained staff; staff with a history of violence; inadequate numbers of staff; the isolation of residents; and, the known reluctance of residents to report abuse out of embarrassment or fear.
For all of these reasons, it is both an honor and a challenge to represent the elderly in personal injury litigation. Specifically, these cases present the challenge of overcoming a tendency on the part of others, including care giver and even physicians, to discount an elderly person's injuries and the diminished quality of life that results from them. With our attorneys’ thorough investigation and effective presentation of the losses sustained by an elderly client, however, injured senior citizens can be fully compensated.
Rights of a Nursing Home Resident
Nursing homes have been defined as private institutions that furnish shelter, feeding and care for sick, aged, or infirm persons. They are not strictly considered hospitals, in that they do not necessarily render actual medical treatment, but may be considered hospitals for certain purposes, depending on various statutes that may govern their operation.
Nursing home residents have the following important rights:
- Residents have the right to see family members, ombudspersons or other resident advocates, physicians, service providers, and representatives of the state and federal government.
- Residents may keep and use their personal possessions and clothing unless doing so would endanger health and safety.
- Residents have the right to apply for and receive Medicare and Medicaid benefits and cannot be asked to leave a home because they receive such benefits. A nursing home must treat all individuals the same, regardless of whether they are private payers or Medicare or Medicaid recipients.
- Residents have the right to keep their clinical and personal records confidential.
- Residents are entitled to lists of what services are paid by Medicare and Medicaid and the additional services for which the residents will be charged, plus the fees for those services.
- Residents have the right to choose their own personal physician.
- Residents have the right to be fully informed about their medical care.
- Residents have the right to participate in the planning of their care and treatment. Nursing home residents have the right to refuse treatment.
- Residents have the right to be free from mental and physical abuse.
- Residents cannot be kept apart from other residents against their will.
- Residents cannot be tied down or given drugs to restrain them if restraint is not necessary to treat their medical symptoms.
- Residents have the right to raise grievances and have them resolved quickly.
- Residents may participate in social, religious, and community activities to the extent that they do not interfere with the rights of other residents.
- Residents cannot be required to deposit their personal funds with the nursing home, and if they request that the home manage their funds, the home must do so according to state and federal recordkeeping requirements.
- Residents have the right to privacy, including in their rooms, medical treatment, communications, visits, and meetings with family and resident groups.
- Residents have the right to review their medical records within twenty-four hours of making a request.
- Residents have the right to review the most recent state inspection report relating to the home.
- Residents must be given notice before their room or roommate is changed, and residents can refuse the transfer if the purpose is to move them from a Medicare bed to a Medicaid bed or vice versa.
- Residents have the right to stay in the nursing home and can only be removed if it is necessary for the resident's welfare, the resident no longer needs the facility's services, it is necessary to prevent harm to the health or safety of others in the facility, the resident fails to pay after reasonable notice, or the facility ceases to operate.
- Residents and their representatives have the right to thirty days' notice of a proposed transfer or discharge, and they have the right to appeal. Before transferring residents for hospitalization or therapy, the nursing home must inform them of the length of time that their beds will be held open for their return, called the "bedhold period." Nursing home residents returning from a hospital or therapeutic leave after expiration of the bedhold period have the right to be readmitted as soon as the first semiprivate bed becomes available.
- Residents must be informed of their rights upon admission, and must be given their rights in writing if so requested.
Ways in Which Nursing Homes May be Held Liable for Resident Injuries
There are many ways in which nursing homes can be held responsible for injuring others as a result of their negligence, abuse, false imprisonment, or violations of criminal statutes, as well as violations of regulations pertaining to their licensing, maintenance, and general operation.
An act of abuse, neglect or exploitation of an older person might give rise to one or all of the following types of proceeding:
- an investigation and finding by an adult protective services agency;
- a civil cause of action for damages; and/or,
- a criminal prosecution.
These three types of proceedings have different objectives: the objective of a protective services investigation is to provide immediate help and relief to the victim and prevent further harm; the civil action is to redress damages; and the criminal prosecution is to punish the harmful conduct.
Civil Actions Against Nursing Homes
The liability of a nursing home owner or employees can result from negligent personal supervision and care, negligent hiring and retention of employees, negligent maintenance of the premises, and negligent selection or maintenance of equipment. Other common law theories of recovery in addition to negligence may be pursued as well. For example, a nursing home resident who has been abused can pursue damages for assault and battery. Despite what many people may believe, an assault does not necessarily involve a physical attack of any kind; an assault is commonly defined as a threat of force with the apparent ability to carry out the threat. Similarly, a "battery" need not consist of a beating or severe physical attack; any intentional, harmful or offensive contact by another might be considered "battery," depending on the law in your state. Probably the most common theory of recovery against nursing homes, however, is negligence. A nursing home, or its owner or proprietor, can be held liable for negligence if the injured party can prove:
- that the nursing home's owner or employees breached a duty of care owed to the injured person;
- that the person's injury was caused by this breach; and,
- that the nursing home owner's or employee's conduct caused the injury.
Statutory Standard of Care
Many states have enacted statutes or regulations that establish certain minimum standards of care for private nursing homes. Even if a nursing home can show it complied with minimum licensing standards, however, it may still be liable for a resident's injuries. For these reasons, it is important to have an attorney research the applicable standard of care, licensing requirements, and other regulations in your area.
Breach of Contract
Usually, a nursing home will enter into a contract with a resident, in which it sets out what services it will provide, and the cost of those services. If the perceived abuse or neglect of the nursing home or its employees is contrary to promises made in the contract regarding the care of residents, the nursing home can be sued under a breach of contract theory. Many contracts require only that the home provide such services as are "reasonably necessary" for the resident's wellbeing, but even under this standard, a nursing home could be found negligent if it failed to meet the basic needs of a resident.