Thanks to improvements in health care, more people are living healthy lives into their senior years. Even the healthiest senior citizens reach a stage when they need help with their daily activities. They may want the comfort and companionship of others around them after their children have grown up.
Nursing homes and assisted living facilities offer an alternative to living alone. Well-run facilities provide good meals, socialization, and on-site nursing care. Families feel safe knowing caring staff look after their loved ones' well-being at these facilities.
Nursing Home Abuse
Unfortunately, not all long-term care facilities are good ones. Nursing home abuse has become its own practice area of law. Nursing home lawyers deal with preventable cases of nursing home negligence and abuse. Insurance companies even provide a type of malpractice insurance related to negligence claims.
What is Nursing Home Abuse?
"Nursing home abuse" is a blanket term for harm suffered by nursing home residents due to negligence, carelessness, or deliberate acts by staff or management. Assisted living and nursing home residents have rights under federal and state law. The Centers for Medicare and Medicaid Services (CMS) provides guidance and legal regulation for any nursing home facility participating in Medicare/Medicaid. State laws regulate private facilities.
Residents in all facilities have the right to:
- Wear their own clothing
- Participate in their medical care and treatment
- Take part in community activities
- Come and go from the facility
- Be free of physical and chemical restraints
- Be safe from abuse or mistreatment
- Bring grievances against staff or management
Providers can restrict these rights for the resident's or community's safety. The facility must explain the restrictions to the resident and the resident's family or caregiver and end them in a reasonable time.
Types of Nursing Home Abuse
The signs of nursing home abuse can be subtle. In some cases, victims of abuse may be afraid to report for fear of retaliation. If a resident is in the early stages of dementia, it can be difficult to know if a complaint is genuine or a sign of psychosis. Family and staff members should take all reports seriously and look for physical warning signs to corroborate the residents' claims.
- Physical Abuse: This may be as overt as hitting or pushing or as subtle as pinching, squeezing an arm too tightly, or taking too many tries to get a vein with a needle. Look for unusual bruises, broken bones, missing hair, and other serious injuries.
- Psychological/Emotional Abuse: Shouting, screaming, intimidating, lying, telling residents their children hate them, forgetting to bring mail or forward phone calls. Look for withdrawal, weight loss, depression, or unusual fear of certain staff members.
- Neglect: Active neglect, such as failing to dress bedsores, assisting residents who need help at mealtimes, and ignoring call buttons. Passive neglect, such as skipping routine checks or overlooking a resident who stays in their room for weeks at a time. Look for malnutrition, foul odors from lack of bathing, depression, and pressure sores.
- Financial Abuse: Most often a front-office offense, financial exploitation includes inducing a resident to sign rent increases or sign over their personal bank accounts or pensions to the facility. Look for unusual invoices or documents in the resident's rooms, unexplained paperwork, or changes in their rent or billing from the facility.
- Sexual Abuse: Any nonconsensual intimate contact between a resident and a staff member is sexual abuse. Rape, sexual abuse, and sexual misconduct occurs in nursing homes and assisted living facilities with distressing frequency. Signs can include genital injuries, STDs, or behavioral changes.
Elder abuse is often unreported because victims are afraid to report it, and others are uncertain if they can. Some believe only the victim or family members can report elder abuse. In most states, anyone can contact law enforcement or Adult Protective Services if they are aware of abuse or mistreatment of a dependent elder.
Making a Nursing Home Abuse Case
If you suspect nursing home neglect or abuse, you should report it immediately. Your next step should be contacting a nursing home abuse attorney. Although nursing home abuse does not rise to the level of medical malpractice, some types of abuse may lead to nursing home malpractice claims or medical negligence claims.
Each state sets its own statute of limitations for nursing home claims. The statute ranges from as little as one year in Colorado and Louisiana to six years in Minnesota. The statute runs from the date of injury or the date you could have discovered it. If your family member suffers from dementia or is nonverbal due to a stroke, you might not have known of the abuse until much later. A nursing home abuse lawsuit should be filed as soon as possible.
If you report the abuse to a state or federal agency, they will carry out their own case review. There are state and federal penalties for violations. Since their case evaluation can take months or years, you should continue filing your own civil claim.
Responsibility for Abuse and Neglect
Under the legal theory of vicarious liability, the employers are responsible for the acts of the employees if they occur within the scope of employment. This means the employer either knew the activity was happening and failed to stop it or did not prevent it. The owners and operators face legal action for the abuse or neglect committed by staff.
Abuse and neglect occur when nursing home staff members are poorly vetted, improperly trained, and badly managed. Understaffing and low pay in low-cost facilities lead to high turnover and inadequate oversight.
For instance, New Jersey law mandates one certified nursing assistant (CNA) must be on duty for every eight residents during the day shift. If staffing falls below that, the facility has breached the standard of care. Since management knows it must keep that ratio, any preventable injuries or neglect due to the understaffing may result in a claim against the nursing home. California nursing homes do not have staffing ratios, but there must be sufficient staff to meet the needs of the residents.
Facilities that provide medical treatment, such as memory care facilities, may fall into the medical malpractice scope in abuse or injury cases. The facility is not liable for medication errors, surgical mistakes, and injuries that occur off-property.
Elder Abuse and Nursing Home Legal Advice
Nursing home neglect attorneys work to get clients financial compensation for their injuries. If your loved one is at risk for continued abuse and neglect at the facility, you need the assistance of Adult Protective Services in your state. They can provide placement assistance and support. Your attorney can assist you with contacting the authorities in your area.
If you need to file a nursing home or elder abuse claim, contact a nursing home abuse lawyer in your area. State laws differ on how to file your claim and who needs to be part of the claim. Other practice areas for legal assistance include elder law, personal injury, and wrongful death.