Nursing Home Abuse Claims

When an older adult is no longer able to care for themselves in their own home or their family cannot provide the necessary care, they may be placed in a nursing home. A nursing home is a residential care facility that can provide basic care for the resident, including helping with activities of daily life. Nursing homes may also have healthcare personnel to help with medication, mobility, and monitoring.

Nursing home residents can be victims of abuse or neglect, which can go unreported because the abuse victim is unable or afraid to report the abuse. If a family member does find out about potential abuse, they can report the abuse and file a nursing home abuse claim to help recover damages for the injury victim.

Types of Nursing Home Abuse

Abuse in nursing homes can take many forms. It can involve a single occurrence or be repeated over time. Nursing home abuse can involve individual caregivers, other residents, or be caused by negligence of the care facility. Types of nursing home abuse include:

• Physical abuse
• Mental abuse
• Sexual abuse
• Economic exploitation
• Neglect

In institutional settings, several factors can 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
• Isolation of residents
• Reluctance of residents to report abuse out of embarrassment or fear

Liability for Nursing Home Injuries

Nursing homes can be held responsible for injuring residents as a result of their negligence, abuse, false imprisonment, or violations of criminal statutes. Nursing homes may also be responsible for any violations of regulations pertaining to their licensing, maintenance, and general operation.

Any act of abuse, neglect, or exploitation of an older person might give rise to one or all of the following types of proceeding:

1. Investigation and finding by an adult protective services agency;
2. Civil cause of action for damages (a lawsuit); and/or
3. 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 goal of a civil lawsuit is to remedy damages, and criminal prosecution is meant 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.

A nursing home can be held liable for negligence. To pursue a personal injury claim based on negligence, the injured party has to prove:

1. The nursing home's owner or employees breached a duty of care owed to the resident;
2. The person's injury was caused by this breach; and
3. The nursing home owner's or employee's conduct caused the injury and harm.

Medical Malpractice Claims

Depending on the state, a nursing home administrator may be considered a health care provider, and be subject to medical malpractice laws. The distinction between negligence and malpractice is important.

For instance, if a nursing home administrator is alleged to have failed to exercise care with respect to maintaining the nursing home facility, that issue will likely not require expert testimony, whereas a nurse's treatment of a patient's condition might. However, the answer may vary from jurisdiction to jurisdiction. In jurisdictions where the administrator is considered a health care provide for purposes of medical malpractice law, the injury victim may have to satisfy the additional procedural requirements of your state's malpractice statute.

Proving Duty and Breach of Duty

A plaintiff suing a nursing home for medical malpractice may need to offer expert medical testimony about what is or is not a proper practice, treatment, or procedure in a given situation. Even if the improper treatment seems obvious, there may be a statutory requirement for expert medical testimony to establish the standard of care.

Statutory Standard of Care in Nursing Homes

Many states have enacted statutes or regulations that establish minimum standards of care for private nursing homes. However, even if a nursing home can show it complied with minimum licensing standards, 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.

Cause of the Injuries

A common issue is whether the resident's injury was inevitable due to their preexisting poor health, medical complications, mental condition, or advanced age. Nursing homes often argue that a resident's preexisting health condition, and not any negligence on the part of the nursing home, was the true cause of an injury alleged in a lawsuit.

This claim should not deter a resident who believes a nursing home caused their injury. There is a well-established rule of law that a defendant, including a nursing home, takes its victim as it finds them, with preexisting conditions and all. The fact that a resident's injury may have been made worse, or was harder to treat, because of a preexisting physical or mental condition does not relieve the defendant of liability.

Defenses to Abuse Claims

In negligence actions, nursing homes are entitled to offer defenses, such as the contributory negligence of the injured party, and assumption of a known risk. Contributory negligence can reduce damages or deny compensation based on the plaintiff's own negligent actions. However, this defense may not be available when the resident was placed in a nursing home specifically because they needed to be protected from the effects of certain medical conditions, like dementia.

Breach Of Contract

In most cases, a nursing home will enter into a contract with a resident, which 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.

Many contracts require only that the home provide such services as are "reasonably necessary" for the resident's well-being. However, even with the most basic standard, a nursing home could be found to have breached the contract by failing to meet the basic needs of a resident.

Criminal Charges for Nursing Home Abuse

Some states provide criminal penalties for elder abuse, neglect, or other mistreatment of nursing home residents. In recent years, there have been more and more prosecutions of elder abuse and exploitation. Some states have enhanced penalties for crimes committed against older people.

In some cases, failure to provide residents with sufficient food, keep residents clean enough, or prevent bedsores from occurring, is considered criminal neglect. In other cases, the unjustified use of physical restraint or force against nursing home residents has resulted in convictions for nursing home abuse. Depending on the state, the definition of abuse may require inappropriate physical contact that harms or threatens to harm the patient, and may not cover verbal threats.

Get a Review of Your Nursing Home Abuse Claim

If you or a loved one has suffered injury or abuse as a resident of a nursing home, you should speak with an experienced attorney as soon as possible to ensure that your legal rights to compensation are fully assessed and protected, especially in light of time limits for filing a lawsuit for nursing home injuries. Get started today with a review of your claim or potential claim from a local attorney.