Nursing Home Abuse FAQ

Nursing home abuse is something most families never want to think about. It is a difficult decision to put a loved one into residential care. Unfortunately, nursing home abuse and neglect in all types of facilities is not uncommon. While exploring their legal options, victims and families have frequently asked questions (FAQ) regarding nursing home abuse cases. Here are some common questions people ask about nursing home abuse with information for you to find help, including:

• Can we sue even if there was no nursing home contract?
• What rights do residents of nursing homes have?
• What will happen if a nursing home resident complains of neglect or abuse?
• What qualifies as 'neglect' in the nursing home setting?
• Can visitors sue a nursing home?
• Why are neglect and abuse common in the nursing home setting?
• How does the law punish acts of abuse or neglect by a nursing home?
• What counts as 'exploitation' of my loved one in the nursing home setting?
• Are all elder care cases subject to the same laws?
• Can the death of a resident be related to neglect or abuse claims?

Can we sue even if there was no nursing home contract?

Yes, nursing home residents (or their survivors) harmed due to improper care by a nursing home may recover damages. There are several legal theories, even in the absence of a contract. A resident might have a cause of action (claim) that arises out of negligent:

• Personal supervision and care
• Hiring and retention of employees
• Maintenance of the premises
• Selection or maintenance of equipment

Even if a contract with liability disclaimers (warnings) exists, a nursing home can't fully escape responsibility for these types of claims. In addition, a nursing home resident who has been abused can pursue damages for assault and battery. Depending on the situation and state law, nursing home abuse may allow for a medical malpractice claim. Abuse victims may have to meet certain procedural requirements for a malpractice claim. Some states even require abuse victims to meet these requirements in order to bring any other claim against a nursing home.

What rights do residents of nursing homes have?

A resident in a nursing facility that participates in the Medicare program has the right to be free from:

• Verbal mistreatment
• Sexual abuse
• Physical abuse
• Mental abuse

Any physical or chemical restraint imposed for discipline or convenience rather than to treat a medical condition

Restraints may be used upon the written order of a physician. The resident's medical records must accurately specify the circumstances and duration of the restraint. Even then, restraints may only be used to ensure the safety of the resident or others.

Separate from federal health care protections, nursing home residents also have rights under state laws. These laws may vary from state to state.

What will happen if a nursing home resident complains of neglect or abuse?

Today, all states have a system for reporting allegations of abuse and neglect. This helps to prevent the exploitation of the elderly and to investigate allegations of wrongdoing. An investigation will usually include interviews with the resident, their family members, and nursing home staff. In addition to staff members and caregivers, investigators will interview owners and managers. If the allegations are legitimate, adult protective services will try to remedy the problems and prevent their recurrence.

However, there may be situations where the victim or their family do not feel satisfied. They might not feel they were justly compensated for the injury or indignity suffered at the hands of the long-term care facility. In such cases, the resident or their family members should speak to an attorney about bringing a civil action. This is a private lawsuit for damages against the nursing home. In addition, the circumstances may warrant criminal prosecution. Criminal charges may only be brought directly by the government.

What qualifies as 'neglect' in the nursing home setting?

Most states define neglect of an older person as the failure to provide them with services essential to health and safety. This includes food, shelter, clothing, supervision, and medical care. Whether such failures are intentional or simply careless may determine neglect versus abuse.

If you suspect abuse or neglect, be proactive. Not all types of neglect or abuse are obvious, especially when it comes to emotional abuse and financial exploitation. More obvious signs of neglect or abuse include:

• Bedsores, malnutrition, and unexplained weight loss
• Unexplained injuries, such as broken bones or excessive bruising
• Constant fearfulness due to verbal abuse or threats against residents

Can visitors sue a nursing home?

Yes. For example, someone injured while at a nursing home can bring a civil claim against the nursing home under the law of "premises liability." This addresses nursing home injuries sustained as a result of a dangerous or unsafe condition on the property. The injured party would probably proceed under a negligence theory against the nursing home and its landlord (property owner). They will be alleging that some negligence in the maintenance of the premises resulted in their injury. Under a theory of employer liability, injured visitors may also be able to sue for harms caused by caregivers or other nursing home staff.

Why are neglect and abuse common in the nursing home setting?

Bad industry practices have contributed to nursing home abuse and neglect over the years. Several factors have been shown to contribute to the abuse or neglect of nursing home residents, including:

• Poorly qualified and inadequately trained staff
• Staff with a history of violence
• Inadequate numbers of staff (understaffing)
• Isolation of residents (including false imprisonment through unlawful physical restraints)
• Known reluctance of residents to report abuse out of embarrassment or fear

How does the law punish acts of abuse or neglect by a nursing home?

An act of elder abuse, neglect, or exploitation of an older person has legal consequences. One or more of the following may occur:

• An investigation and finding by an adult protective services agency or ombudsman
• Civil cause of action for damages (a private lawsuit)
• Criminal prosecution (criminal charges brought by the government)

These proceedings have different objectives. A protective services investigation aims to provide immediate help and relief to the victim and prevent further harm. A civil action (lawsuit) aims to provide financial compensation to the victim. A criminal prosecution is meant to punish harmful and illegal conduct. Criminal convictions can mean fines, prison time, and suspension or revocation of nursing home licenses.

What counts as 'exploitation' of my loved one in the nursing home setting?

Many states define exploitation as the wrongful use of an older person's resources for profit or advantage. Some definitions refer simply to the misuse of an older person's funds, property, or person. Other states specify that exploitation requires that resources must have been obtained without the older person's consent. For example, they may have been obtained through undue influence, duress, deception, or false pretenses.

Are all elder care cases subject to the same laws?

Yes and no. Elderly residents may have arrangements with:

• Assisted living facilities
• In-home care providers
• Nursing homes

You can certainly bring a negligence lawsuit against all three of these. You can also sue them for breaching a contract or assaulting the elderly. But each kind of care arrangement is licensed differently. They may be controlled by distinct local or state laws. For example, in some states, a nursing home administrator may be considered a health care practitioner. Accordingly, you may also be able to sue them for medical malpractice.

Can the death of a resident be related to neglect or abuse claims?

Yes. The law recognizes a civil cause of action (claim) for wrongful death. Close relatives or survivors may sue a nursing home if a resident wrongfully died under their care. For example, if a caregiver makes medication errors, a vulnerable elderly resident may suffer a fatal heart attack. Similarly, nursing home staff who intentionally harm their guests may be responsible for their deaths.

Have More Questions or a Possible Claim? Get a Legal Evaluation

This nursing home abuse FAQ does not cover all situations. Since each case is unique, you may need to establish a client relationship with a personal injury attorney to discuss your circumstances. Many injury lawyers provide free case evaluations to help you decide whether to file a claim. If you're not sure where to begin, contact a nursing home abuse lawyer today.

Some nursing home abuse attorneys work on contingency fees in lieu of asking for upfront attorney fees. This means you won't have to pay them a cent until and unless they recover money for you. Act quickly, as each state has a statute of limitations, a law that sets filing deadlines for court cases.