What Legal Protections Do Older People Have in a Nursing Home?

All states have laws concerning the abuse, neglect, or exploitation of older people. These laws or statutes ensure older adults have the autonomy, respect, and attentive care they deserve. Most states have a system of adult protective services for investigating and remedying reported abuses. Some states have laws giving victims of abuse or neglect a civil cause of action (claim). The government may also criminally prosecute perpetrators of elderly abuse for misdemeanors and felonies.

This article provides a brief overview of the legal protections for older people.

Adult Protective Services (APS)

All states have a system for:

• Reporting allegations of abuse, neglect, and exploitation of older people
• Investigating the allegations
• Providing services to older people to remedy problems and prevent recurrence

Most states have mandatory reporting requirements for elderly abuse. Health care professionals and long-term care providers may have a legal duty to report any abuse they witness. Additionally, a state's adult protective services agency (APS) allows victims and their families to report abuse, neglect, or exploitation of older people. Even before civil or criminal action commences against a nursing home, the APS may investigate these allegations.

An APS agency, ombudsman, or state department of health may conclude that an allegation is founded. In that case, it will respond by offering victims appropriate services, such as:

• Medical care and assistance
• Counseling
• Special transportation (especially for older people with disabilities)
• Assistance with money management
• Placement in a different residential setting

The case may be referred for criminal prosecution.

Civil Actions Based on Statutes (Written Laws)

Some states have created causes of action (legal claims) involving the abuse, neglect, or exploitation of older people. This allows victims to bring civil actions (private lawsuits) against liable parties. Liable perpetrators may include nursing homes, long-term care facilities, and employees.

Civil causes of action may authorize damages awards to victims. This includes:

• Compensatory damages to make victims whole for their pain and suffering and monetary losses, including medical bills
• Punitive damages to punish wrongdoers who knowingly engage in egregious or shocking behavior

Nursing home statutes may also authorize the issuance of injunctions and protective orders. These legal mechanisms provide immediate relief from ongoing abuse or neglect:

• An injunction is an order by a court requiring a liable party to stop a prohibited behavior. For example, a nursing home may be required to change its policies to end certain harmful practices.
• Courts award protective orders to prevent sexual abuse or other physical harm to victims. These are more common in domestic violence cases.

Laws Preventing Nursing Home Abuse

Nursing homes must ensure the respect and freedom of their residents. Some states have special statutory protections against violating the rights of residents of nursing homes and long-term care facilities alike. Generally, the statutory rights of long-term care facility residents include the rights to:

• Be free from abuse and neglect
• A safe living environment
• Autonomy over personal life
• Respect and dignity

To qualify for Medicaid funds, long-term care facilities that qualify as skilled nursing facilities must meet certain requirements, including:

• Federal
• Statutory
• Regulatory

Most nursing homes today fall in this category and must meet federal standards. One federal requirement is that such facilities comply with a "residents' bill of rights." This provides that residents have the right to be free from:

• Verbal, sexual, physical, and mental abuse
• Corporal punishment
• Involuntary seclusion

Older adults with developmental disabilities or other ailments may be reasonably restrained. However, any seclusion or restraint beyond what is reasonably needed may amount to abuse or neglect.

When Nursing Homes Fail To Provide Protection

If a nursing home fails to protect its residents, it may become liable for abuse or negligence (nursing home neglect). While state definitions of abuse vary, many states' definitions include actions that cause:

• Personal or physical injury
• Emotional anguish
• Psychological injury
• Pain and suffering

These definitions may cover a wide range of acts and types of elder abuse claims. They include verbally insulting or demeaning an older person and other actions that have the effect of causing emotional pain or instilling fear in an older person.

Some states also include isolating or unreasonably confining older people as a form of abuse. Isolation might include preventing communications with or visits to the older person.

Under some circumstances, an older person's movement might reasonably need to be restricted for their safety. However, confinement beyond that which is necessary for the person's protection could be considered abuse or neglect.

Standard of Care To Prevent Neglect

Most states define neglect of an older person as the failure to provide them with services essential to health and safety. Accordingly, nursing homes and similar facilities have a duty of care to prevent harm to their residents. Nursing home residents are, for the most part, dependent on others for at least some of their basic needs, such as:

• Food and medicine
• Adequate supervision
• Safety and shelter
• Medical treatment (and preventing medical malpractice)

Being deprived of these necessities can harm or endanger an older person as much as an intentional injury can. Shocking examples of neglect include:

• People lying in their own waste
• Suffering from excessive bedsores and bruises
• Having no human contact
• Being generally in dire need of medical attention and personal hygiene

Whether such failures are intentional or careless may determine whether a case against a nursing home is for neglect or abuse. A nursing home can become liable for grave consequences even when a civil wrong (tort) is unintentional. For example, if negligent care results in a resident's wrongful death, a care facility can be liable for the accident.

Exploitation of Older People

Caregivers also might harm older people by taking advantage of them. This could include:

• Taking their money or property (financial exploitation)
• Inducing them to perform sexual acts without consent
• Forcing them to perform other services for the benefit of a caregiver

Such exploitation might not endanger the older person's health or safety. But it may result in the loss of the person's property, mental health, or self-esteem. Thus, these situations may call for state intervention, especially if sexual or financial abuse causes a serious impairment of a dependent adult.

Many states define exploitation as the wrongful use of an older person's resources for another person's profit or advantage. State laws use various terms to denote the wrongful nature of the act, such as illegal, improper, unjust, and without legal entitlement. Some definitions refer simply to the misuse of the person's funds, property, or person.

Some states specify that to qualify as exploitation, the perpetrator must have obtained the resources without the older person's consent or through:

• Undue influence
• Duress
• Deception
• False pretenses

Some states, like Florida, will permit the exploited older person to receive both compensatory and punitive damages. They may also be awarded their attorney's fees and costs for the lawsuit.

Have You or a Loved One Suffered From Older Person Abuse? An Attorney Can Help

Abuse of an older person can cause serious pain and hardship for those affected, including family members. Victims may suffer from exploitation, neglect, physical abuse, or some other mistreatment. Sometimes, the acts may violate criminal statutes, and law enforcement may become involved. Other times, you may want to seek compensation in civil court through a personal injury lawyer.

Get help by contacting a local personal injury attorney near you. They can provide legal advice about the legal rights of your loved ones and their family members. The experience and power of attorneys to protect victims go beyond holding nursing homes accountable. They can also ensure that the logistics of your case are sound and no deadlines are missed. That means ensuring your case is filed in court promptly as required by your state's statute of limitations.