Nursing Home Abuse
Pursing Nursing Home Abuse
Tim welcomes wonderful senior citizens with open arms. He understands that injuries to seniors often become a tipping point in their lives causing loss of independence and affecting family and friends. He also understands that insurance companies may attempt to pay less to seniors, claiming that senior injuries aren’t worth as much because the victim is older. Tim believes the exact opposite.
Tim understands the causes and signs of nursing home abuse. He will work hard to investigate and build strong cases for his clients. While Tim can never undo the harm, he will do everything he can to assist victims and their families receive answers along with full and fair compensation. He will simplify the complex process of filing an abuse suit against the nursing home or assisted care living facility.
Signs of nursing home abuse can include:
- sudden changes in behavior;
- unexplained injuries;
- slip and fall accidents;
- reluctance to see a medical professional for wounds or injuries;
- trouble sleeping or sudden loss of interest in previously enjoyed activities;
- the appearance of sexually transmitted diseases;
- unusual and unexplained withdrawals from bank accounts;
- changes to or disappearance of legal documents;
- decreased appetite or unexplained weight loss;
- malnutrition;
- medication errors.
Explanations of Selected Nursing Home Abuse Topics
Types of Actions
Four types of legal actions may be brought against nursing homes and their employees: regulatory; criminal and civil suits in tort or contract.
Regulatory Actions. Nursing homes are heavily regulated at the state and federal level. These regulations govern licensing and duties of care. Nursing homes and assisted care facilities zealously protect their licenses and on-line reputations. Failure to meet regulatory standards can result in harsh penalties, loss of license and reputation.
Criminal Actions. When a nursing home or its employees commit a crime, it may be prosecuted like any other. Examples include:
- theft; theft is the act of stealing. In the context of a nursing home this can mean theft of personal effects and money.
- neglect. neglect in a nursing home is often considered a kind of abuse, even though it is not an action. As an inaction rather than an action, neglect involves not providing patients with the care they need. The neglect may be unintentional or non-malicious, which is still often considered negligence or even criminal. But, neglect may also be willful and intentional. Caregivers may neglect patients out of incompetence, laziness, or maliciousness. According to the Omnibus Budget Reconciliation Act of 1987, a federal law that includes nursing home reforms and protections for patients, defines nursing home neglect as, “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” This is a broad definition that may include a number of issues and incidents that take place, or fail to take place, in a nursing home.
- assault: this is an intentional act which creates an apprehension in the victim of imminent harmful, immediate contact. An assault is carried out by the threat of bodily harm coupled with an apparent, present, ability to cause the harm. It is both a crime and a tort.
- assault: an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.
Victims of nursing home crime may seek restitution through the district attorney’s office.
Civil Tort Actions. Most nursing home abuse cases are founded in civil tort actions. Most Tort lawsuits are brought on the following basis:
- abuse: intentionally harmful acts such as physically hitting or constant verbal belittling a nursing home resident falls under the broad definition of abuse.
- medical malpractice: when a health care professional acts outside beyond of the standards in of their profession, and it injures a patient, that professional has probably committed malpractice.
- neglect: neglect is a form of abuse in which the perpetrator fails to uphold their duties to care for someone who is unable to care for themselves out of carelessness, indifference, or unwillingness.
- negligence: negligence describes a failure to take the appropriate and/or provide ethical care expected in a given circumstance.
- negligence during the COVID-19 Pandemic: COVID-19 has spread quickly in nursing homes where residents are at a disadvantage because of age, underlying health problems, and living in close quarters. Nursing homes have restricted visitation during the pandemic leaving residents finding themselves feeling lonely. This might lead to mental health issues. Inadequate staffing, improper training and lack of a proper COVID-19 contingency plan can mean that nursing home residents face greater hardship than just the virus. Related problems can arise such as bedsores, improper treatment/medication, a more rapid decline in health and malnutrition.
- wrongful death: wrongful death occurs when a nursing home resident dies because of caretakers negligence or intentional harm.
Civil Contract Actions. When a person becomes a resident of a nursing home or assisted care facility, they or their representative sign a contract with the facility. If the contract doesn’t explicitly guarantee the residents’ health, safety, welfare and security, it makes these guarantees implicitly. No one intentionally places their loved one in a facility where they will face harm. If harm results, this is a breach of contract. A breach of contract lawsuit can help a nursing home resident recover the amount they paid to the nursing home. Compensation beyond what is tied to the contract will likely be limited for the practical reason that nursing home insurance carriers rarely cover breach of contract. In a breach of contract action, a nursing home abuse victim sues the nursing home directly – not its insurance carrier – to win only that money which the business, itself, could provide.
To win a breach of contract action, a plaintiff must prove:
- the existence of a contract;
- a breach of that contract;
- damage or harm resulting from the contract breach.
Navigating Nursing Home Abuse
Sometimes a medical condition will not manifest itself until time has passed following the incident. If a patient or family member thinks they or a loved one has been abused in a long-term care facility, they should seek a second medical opinion and contact Tim immediately. There is a better chance of developing their case while evidence and memory is still fresh.
Immediately following an accident, a victim and their loved ones, if able, SHOULD:
- generally, assess physical condition of the victim. Note: not all injuries are immediately obvious;
- seek competent care;
- identify their immediate care takers;
- request medical records, take photographs from different angles (no detail is too small);
- take notes of anything which may have contributed to the abuse;
- record any incidents or confrontations, if possible;
- obtain a proper independent medical examination and treatment as soon as possible. This is important to treat injuries and to discover any other injuries that may not be immediately obvious. The treating physician should be informed as to the origin of the injuries. Get documentation.
- follow doctor’s orders for treating their injuries. Failure to do so could impact the amount of compensation a victim receives;
- document all expenses related to the abuse. Ask: would these expenses have been incurred had there been no abuse?
- Act fast. Aside from the statute of limitations, developing and preserving evidence is important particularly where a victim’s capacity to recall may diminish over time.
The victim of a nursing home abuse SHOULD NOT:
- maintain their current circumstances;
- negotiate anything with the nursing home, its investigator attorney or its insurance company about specific details except through their attorney;
- accept the nursing home insurance company’s estimate of claim value;
- accept any check that reads “Final Payment”;
- sign any release;
- comment to anyone about one’s physical condition;
- write, post, receive or retain any information on social media relating to the abuse.
Nursing home neglect includes:
- failure to provide basic nutrition and hydration;
- failure to ensure residents’ personal hygiene;
- errors with prescription medication;
- failure to provide proper medical care and/or not adhering to physician orders;
- poorly designed and maintained facilities;
- unresponsive attendants and staff;
- physical abuse of the resident;
- emotional or verbal abuse;
- sexual assault or other criminal acts inflicted on a resident, and;
- stealing a resident’s possessions and money;
- long periods between meals;
- excessive time between change of clothes or showers.
Nursing home neglect can have a significant impact on the health and well-being of residents. Physical health, mental health, and hygiene can all be directly affected. Signs of potential neglect or abuse can arise through a patient’s hygiene – skin color; dirty skin; unclean clothes, and ill-fitting or missing clothes. The patient may have potential health consequences:
- untreated medical or dental issues;
- recurring sicknesses or injuries;
- weight loss or malnutrition;
- dehydration;
- anemia;
- fatigue;
Consequences of neglect or abuse may extend beyond the physical. The victim may also suffer social & emotional consequences which show up as:
- unpaid bills or other debts;
- personality changes (like depression, anxiety, or fear);
- feelings of isolation and loneliness;
- loss of trust in others;
- insomnia or sleep loss;
- substance use or abuse;
- suicidal thoughts or actions.
In the most severe cases, mistreatment and neglect in nursing homes result in declining health and pre-mature death. The Boston Globe reported about a Vietnam veteran who died in a Massachusetts nursing home because his nurse spent the night playing video games instead of checking on him.
FAQ's
Q: What types of civil claims can be brought against nursing homes for abuse?
A: Tort and breach of contract. A tort is a ‘wrongful act’ or an ‘infringement of a right’ (other than under contract) leading to civil legal liability. Breach of contract is the failure to fulfill any aspect of a contract. Higher damages are available through tort.
Q: What are the legal options if nursing home abuse is suspected?
A: The most important option is filing a lawsuit. Lawsuits help families by:
- awarding financial compensation to pay for current medical treatment and future medical expense;
- holding abusers accountable;
- sending a clear message that nursing home abuse is intolerable.
Other than a lawsuit, an abuse victim can file a criminal report with local authorities, such as the local police department or the Adult Protective Services. These agencies catch abusers and bring them to justice. Nursing home residents and their families also have the option of reaching out to local long-term care ombudsman employed by the state and state regulators where licensing is involved.
Q: On what basis can compensation be awarded?
A: Nursing home abuse can cross the boundary between civil and criminal law. Compensation can be had through either forum. In criminal forums, victim advocates can seek compensation on behalf of the abused. In civil forums, compensation commonly arises from settlement before trial. While a negotiated settlement may achieve less than the amount potentially available through jury trial, the uncertainty of losing at trial is removed. Three factors generally influence compensation amounts:
- costs associated with the abuse;
- the abuser’s intentionality or recklessness;
- the victim’s suffering;
- the difficulty of proving the case at trial – what evidence is available.
Q: What are the grounds for compensation?
A: Grounds for financial compensation may be depend on the type of abuse suffered such as:
- neglect – failure of a nursing home to properly see to the needs of residents in its care;
- physical abuse – intentional infliction of bodily harm on a nursing home resident;
- sexual abuse – any sexual contact or advances toward a nursing home resident who did not, or could not, consent;
- emotional abuse – cursing, making fun of, isolating, or acting in other ways that psychologically harm a resident;
- financial abuse – financially exploiting, coercing, committing fraud against, or stealing from, a resident.
Q: How does compensation arise?
A: Compensation from nursing home abuse suit comes in the form of a dollar amount awarded by a judge, jury or settlement paid to the victim. A criminal action may also require the guilty party to pay restitution (ie: compensation someone charged with a crime must pay to their victim for losses suffered). This is especially true where financial abuse has been discovered.
Financial restitution is meant to:
- repay the value of stolen or damaged property;
- reimburse medical and/or dental expenses incurred as a result of a perpetrator’s wrongful actions;
- reimburse mental health expenses, such as therapy or psychiatry assessments;
- pay for interest on lost investments;
- relocate or pay for transportation expenses that have arisen from a crime;
- repay a victim’s legal fees;
- pay for physical rehabilitation expenses;
(The forgoing list is not all inclusive.)
Other types of restitution arise from the criminal justice system. A defendant may be ordered by a criminal court to perform useful public service and other public duties as part of probation or parole.
Q: Are there time limits for filing a legal action?
A: Yes. The Statute of limitations restricts the time within which victims and their families may file a lawsuit. In Colorado, an auto accident victim or their family has two years within which to file a suit for negligence. Other claims may have different time limits. The statute of limitations begins to run when the victim or their family knew, or should have known, about the claim.