Proving a Complaint Against a Nursing Home

Elder abuse is a problem. The National Center on Elder Abuse (NCEA) says that as many as 2 million elders suffer abuse in the U.S. Many of them reside in nursing homes or healthcare facilities. While significant progress has been made in the last two decades, more needs to be done. That includes better training, safety inspections, and reporting procedures to ensure the well-being of older adults.

To get compensation and justice, it's up to elderly advocates to prove that a nursing home did something wrong. This article provides information for family members about the actions they need to take to file and prove a complaint for nursing home negligence or nursing home abuse. This includes:

• How to identify and gather helpful evidence
• What makes a nursing home liable for causing harm

When Is a Nursing Home Negligent?

Nursing home residents often suffer life-threatening injuries and wrongful death from negligence. Many laws protect the elderly, but in general, negligence law addresses injuries. Negligence is a tort (civil wrong) relating to the carelessness of a wrongdoer. In order to determine whether a nursing home or healthcare facility has been negligent or abusive, it's helpful to understand the duties and responsibilities of a healthcare facility.

Negligence has four legal general elements. You must show that a nursing home:

• Had a duty to provide for the safety of its residents
• Breached its duty by failing to meet the reasonable standard of care
• Caused injury to its residents by breaching its duty
• Inflicted damages, such as physical or financial injuries to the affected victims

Nursing homes owe a duty of care to their residents as medical providers and as parties to a legal contract. The nursing home's 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. A reasonable nursing facility must properly supervise all residents.

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 by behaving reasonably under the circumstances. It is also responsible for operating a facility that meets federal and state standards, such as those found in the Federal Nursing Home Reform Act of 1987.

Proving Neglect Through the Standard of Care

Elders in healthcare facilities can suffer neglect, physical abuse, and emotional abuse. They may also suffer from 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:

• Nutrition
• Shelter
• Clothing
• Supervision
• 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 as well. Meanwhile, financial exploitation is 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.

If a nursing home or its staff is committing the acts described above, you would have a strong argument that the facility has failed to meet the legal standard of care.

How To Gather Evidence To Prove Neglect

Gathering evidence can help you prove your civil lawsuit. Some examples in the nursing home context include:

• Witness testimony from other residents: They may have seen or heard about the victim's injuries or wrongful acts committed by their caregivers.
• Medical records created by doctors or other health professionals: This can include a health practitioner's documentation of psychological harm suffered by an elderly victim. The records will also contain information regarding the victim's medical treatment and medical expenses.
• Photographs of dangerous premises or serious injuries: This can include pictures of bruises, ulcers, bedsores, malnutrition (weight loss), and other physical proofs. The photos might also show broken equipment or unsafe environments in a nursing home.
• Statements from nursing home abuse victims and their caretakers: Both the victim and those charged with taking care of them will have powerful statements to make.
• Nursing home policies and procedures, including employee information to determine understaffing: These documents can help you better paint a picture of the nursing home's operations and practices to determine if they met the standard of care.
• Expert testimony, such as analysis from medical professionals or nursing home experts regarding proper care: This helps to determine if the nursing home's behavior was reasonable in the circumstances.
• Bank statements or other evidence of financial losses: If there has been financial abuse, any and all documents will help.

This is not an exhaustive list, and every case will be unique in the myriad of evidence that may apply to it. Keep in mind that you can initiate your civil lawsuit before you have gathered all of this evidence. Sometimes it's impossible to compile all of your proof until after you've filed your case. This is because filing a lawsuit allows the parties to engage in the discovery process, where each side formally exchanges evidence with the other.

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 (APS). Each state also 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 nursing home abuse to a state ombudsman or to the state attorney general should kick off an investigation. That investigation will include interviews with the injured senior, other residents, family members, nursing home staff, caregivers, 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. The following will also be very helpful to any evidence you assert for your civil lawsuit against the nursing home:

• 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.

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. The job of the nursing home abuse lawyer is 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 elderly may be helpful in documenting their pain and suffering, which may include:

• 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

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 a 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 due to 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, standard building maintenance, enough staff supervision, and adequate 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 and long-term care facilities 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.

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. Keep in mind that there is a time limit for bringing a case to court. You must take timely legal action to file your case before the expiration of your state's statute of limitations.

A nursing home abuse attorney can give you legal advice about your legal options. Some nursing home abuse lawyers even provide free case evaluations. To hold nursing facilities responsible and to obtain financial compensation for your loved ones, speak with a lawyer today. They can fight with tough insurance companies and file a lawsuit on your behalf, if needed.