Proving a Complaint Against a Nursing Home

The National Center on Elder Abuse (NCEA) says that as many as 2 million elders suffer abuse in the U.S. Too many of them reside in nursing homes or healthcare facilities. Interviews with 2000 nursing home residents found 44% of them saying they had been abused and 95% said they had been neglected or seen another resident neglected (Broyles, 2000).

A report to the U.S. House of Representatives in 2001 found that nearly 1 in 10 nursing homes had been cited for violations that caused residents serious injury or placed them at risk of death. While significant progress has been made in the last two decades with training, safety inspections, and reporting procedures, nursing home residents still suffer injury and death from negligence.

Every human life has value. This article provides information for family members about the actions they need to take to file and prove a complaint of nursing home abuse.

What Duty of Care Does the Nursing Home Owe to a Nursing Home Resident?

In order to determine whether a nursing home or healthcare facility has been negligent or abusive, it's helpful to know what the duties and responsibilities are of a healthcare facility for a resident.

Nursing homes owe a duty of care to their residents as medical providers and as parties to a legal contract. The nursing home duty of care is to provide protection, safety, and care, and to avoid behaviors or conditions that could cause harm.

This is why the nursing home can be held accountable even if the injuries were caused by another nursing home patient, rather than a nursing home employee. Were residents properly supervised?

The resident and the nursing home have entered into a legal contract that specifies the amount and type of care and medical services the resident will receive in exchange for compensation. The nursing home is legally liable to provide that level of care and services. It is also responsible to operate a facility that meets federal and state standards, such as those found in the federal Nursing Home Reform Act of 1987.

Elders in healthcare facilities can suffer neglect, physical abuse, sexual abuse, psychological abuse, and financial exploitation.

Most states define neglect as failure to provide services essential to health and safety. This would include adequate and appropriate food, safe and hygienic shelter, appropriate clothing, adequate supervision, and prescribed medical care.

Physical abuse is the infliction of physical pain or physical injury. Some states also view physical restraints and chemical restraints (drugs) as abuse. Sexual abuse would fall under physical abuse.

Financial exploitation in a nursing home is typically defined as the wrongful use of an older person's funds or property for profit or advantage. Some states specify that resources must have been obtained without the older person's consent, or under false pretenses to qualify as financial exploitation.

Reporting Elder Abuse and Nursing Home Neglect to the State

If you suspect your loved one is being neglected or has been abused by health care providers in their nursing home, contact Adult Protective Services Agency (locate APS in your state). Each state has a Long Term Care Ombudsman Program. You can also call the Eldercare Locator at 1-800-677-1116 for a referral to a local agency.

Reporting abuse to a state ombudsman or to the state attorney general should kick off an investigation of the nursing home. That investigation will include interviews with the injured senior, other residents, family members, and nursing home staff and management.

Any information you can provide about the neglect or abuse you have seen while visiting a loved one in a nursing home will help investigators.

• Did you witness bruises, broken bones, abrasions, burns, or other injuries to your loved one? Have you seen multiple injuries over time? Do they have bedsores or infections? How do the staff explain this? Have these injuries been reported to their doctor?
• Does your loved one tell you they have been abused or assaulted? Even if a senior is suffering from dementia and is not always a reliable source of information, take note of what they say. Convincing evidence may surface that proves their claims were true. You will want to note when those claims were made.
• Has your loved one lost weight? Are they unclean or not properly dressed?
• Have you found your loved one tied to a bed? Or come to visit and find them on the floor?
• When you visit do you see call lights go unanswered for long periods of time? Do you have trouble finding any staff on the ward?
• Has your loved one's behavior changed? Have they become fearful and withdrawn?
• Does it appear that your loved one is paying for services they are not receiving? For example, were you billed for a walker but there is no walker in their room?

In and of themselves, each observation may have a reasonable explanation. But these observations may add up to a pattern of neglect or abuse. If it's serious enough to cause harm, it should be reported to the state.

The investigating agency will then issue a report on their findings to the nursing home and the family. If wrongdoing is found, the nursing home may be required to make specific changes to address problems. A worst-case scenario for a nursing home is that it loses its Medicare certification or is closed down.

If the victim, or the victim's family, does not feel satisfied with that action, they can speak with a personal injury lawyer about bringing a lawsuit for damages. If the wrongdoing was criminal, they can report it to the police (if that hasn't already been done).

Bringing a Personal Injury or Elder Abuse Case to Court

After a serious nursing home injury occurs, families have every right to consider a personal injury lawsuit. Whether the injury resulted from lack of supervision, nursing medication error, or staff misconduct, the nursing home itself may be liable.

The specific claims in a nursing home lawsuit will depend on the type of abuse, the laws of your state, and whether the action was intentional or negligence. Filing the wrong complaint in court could get your case dismissed.

Work with a personal injury or elder law attorney to determine exactly what claim to bring in an elder abuse lawsuit. Provide the documentation you have been collecting. If you have already reported negligence or abuse to the state and they have investigated and issued a report, share that with the attorney.

Your attorney may file a case for:

• Negligence: Failing to provide food, clothing, personal care, medical care; substandard building maintenance, lack of staff supervision, inadequate staffing
• Negligent hiring: Hiring staff who lack appropriate licensure or training, or who have prior criminal records
• Elder abuse
• Medical malpractice
• Breach of contract
• Nursing home wrongful death

if your complaint involves a breach of the nursing home contract, there may be an arbitration clause. If that is the case, you will either have to enter into arbitration or you will need to go to court to first prove why that clause should not be enforced.

Can You File a Personal Injury Case? Or Do You Need to File a Medical Malpractice Lawsuit?

In some states, nursing homes are considered "healthcare facilities" and staff members are "healthcare providers." If that is the case in your state, your negligence claim may need to meet the stricter requirements of a medical malpractice claim. There may be additional procedural requirements involved, such as pre-litigation boards and statements of merit.

If you suspect this is the case in your state, be sure to work with a lawyer who handles medical malpractice cases. Not every personal injury attorney does. An experienced medical malpractice lawyer will be able to advise you on the strength of your case.

Evidence of Injuries and Neglect That Deserve Compensation

Your most important task, as an injured person or family member, is to provide as much evidence as you can regarding the existence and extent of injuries. This can be physical, mental, emotional, or financial injury.

You do not need to prove the cost of the injuries. That is the job of the nursing home abuse lawyer to investigate current and future costs so an accurate, thorough, and complete settlement agreement can be reached.

Sources of information to prove that physical injuries occurred:

• The statements of the victim and witnesses (staff, residents or visitors)
• Locations and a timeline of events
• Descriptions and photographs of injuries
• Medical records, if you have permission to access those records
• Statements from the victim's medical providers
• Emails or letters you received from the nursing home administration
• The investigative report from the state agency
• Statements of nursing home supervisors regarding the incident

A serious injury may reduce an elder's life expectancy. This question should be explored with a medical doctor.

Information to prove the financial cost of injuries:

• Medical bills and rehab bills
• Drug and medical equipment bills
• The victim's finances (if you're in a position to do so)

Your personal injury lawyer will consult with doctors, rehab professionals, therapists, psychologists, and others involved in providing follow-up medical care to determine what will be needed in the future. Any money damages received will need to cover this future medical care.

Proof of Pain and Suffering

Such suffering is not less real at the end of life than it is at the beginning. Elders deserve equal compensation. Seeking counseling for the elder may be helpful in documenting

• Fear that limits the senior from engaging in activities they once did and that reduces their quality of life
• Loss of enjoyment of life from depression, anxiety, or post-traumatic stress disorder (PTSD)
• Past and ongoing pain
• Difficulties with mobility
• Loss of capacity

Get Legal Help with Nursing Home Abuse Injuries. Talk to a Lawyer.

It's sad but true that nursing home abuse is not uncommon. As with any injury claim, the injured party must prove in a civil lawsuit that abuse occurred, as well as the extent of injuries. There is a time limit for bringing a case to court. Get professional legal help. Call a local nursing home negligence attorney.