Nursing home liability for personal injury to residents, especially falls and pressure sores, is a growing area of legal concern. Although only a small portion of these complaints of abuse and neglect reach trial, increasing damage awards has nursing homes concerned about higher liability insurance premiums. The industry argues that increased liability has a negative impact on the quality of care, while senior care advocates argue that liability is an important part of keeping the caregivers of this highly vulnerable population accountable.
Family members may be surprised to learn just how lax federal laws governing nursing home disclosures are. Though states can set stricter rules, federal law does not require care facilities to conduct background checks on residents or to disclose problems related to those residents. Illinois is a among the states that have set stricter rules, requiring homes to identify residents who are registered sex offenders and felons on probation or parole. But even those requirements won’t identify non-sex offender felons who have served their time. Ultimately, responsibility for checking out a nursing home rests with families and residents , who cannot always count on getting full information from a home.
Nursing Home Liability
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Residents, their children, their spouses, or their friends can sue a nursing home based on malpractice, negligence, intentional injury, and negligent hiring and supervision. These legal grounds cover everything from failure to prevent and treat bedsores to sexual abuse of residents by staff. Wrongful death is the most common basis for personal injury liability in nursing home cases.
Some Types of Abuse to Look For
Many nursing homes are understaffed, which can lead to abuse such as:
- Bed sores or pressure ulcers
- Falls and fractures
- Medication administration errors
- Malnutrition and dehydration
- Physical or sexual abuse
There’s no national standard for nursing home staffing, but a Kaiser Family Foundation report found that these facilities should pay for a minimum of two hours and 45 minutes of support staff per resident per day, and ideally staffing should be much higher.
Laws in Many States
Many states have passed laws that establish a nursing home standard of care. Nursing home resident rights laws can be used to sue the home, staff, and administrators in addition to traditional legal grounds. Some states have attempted to pass laws to limit the amount of damages awarded under nursing home personal injury cases. Policy makers in these states argue that litigation is having a negative effect on the nursing home industry.
Personal Injury Cases Are Now More Viable
Traditionally, senior citizens were in a weak position to file personal injury cases. Since the elderly are past their wage-earning years and rarely have dependents, economic losses were hard to prove. A relatively recent trend is children of nursing home residents suing on behalf of parents and for their own emotional distress and loss of companionship. This trend has breathed new life into this legal area.
“Families of nursing home residents have to be vigilant in examining their loved one’s body. If family members don’t get action from the people that work at the home, they need to contact a lawyer.”
One in three nursing home residents, or more than 1 million Americans, have experienced some level of abuse.
Addressing problems
Once your loved one moves in, you should still be vigilant to make sure he or she receives adequate care.
Watch for signs of physical neglect, like bed sores or unusual bruising, and pay attention to other aspects of your loved one’s physical condition. Dry skin and thirst could indicate that a resident is not getting enough water — something nursing home care staff should be trained to watch for. Slower-than-normal mental response times could mean a resident has been over-medicated.
Look for poor hygiene, too. Is the person in clean clothes, hair combed, teeth brushed? Is the bed made? Is there sudden weight loss that’s not explainable by a particular illness?
Sometimes the warning signs are more subtle. If you can’t visit unless you make an appointment first, or if you aren’t allowed into the room until staff have had a few minutes alone with your loved one, that could be a sign that something is being kept from you, Miller said. “If they don’t allow you to visit with a family member alone, or if the staff seems to hover while you’re visiting, that’s a warning sign.”
It’s also a good idea to watch for unexpected changes in personality. If a loved one becomes withdrawn, angry, depressed or anxious – especially if he or she reacts badly when nursing home staff walk into the room – that is a red flag, Miller said.
If something seems wrong, document it. Take pictures of bruises, make notes of odd behavior. If no staff members stop by during a six-hour visit, write that down along with the date of the visit. Records like these can help later if an issue arises, Miller said.
At the same time, it’s important to keep perspective. Major life changes, like moving into a new residence, can be stressful and lead to anxiety and other behavior even at a well-run nursing home. Alzheimer’s and dementia, not mistreatment, may be to blame for out-of-character behavior. And even in the best-run care center people may and a minor bruise from time to time.
If you’re not sure if you have a case, a lawyer can help you weigh the evidence, Miller said.
Financial concerns should not keep you from picking up the phone. Nursing home abuse cases are nearly always taken on a contingency-fee basis, which means your attorney won’t get paid unless he or she successfully sues.
If something seems off, it’s best to consult a nursing-home abuse expert early on, Miller said. “I’d much rather tell you that you have nothing to worry about than tell you later that it was horrific and you should have called.”
Requirement of Binding Arbitration
Some nursing homes have made arbitration clauses part of their admission contracts. Residents entering the facility for the first time sign away their right to sue the nursing home, its staff, or its administration in court. Instead, residents must use binding arbitration that submits their claims to a professional arbitrator rather than a judge and jury. Some nursing homes go a step further and use the clause to limit damages and access to nursing home records to prove the resident’s case. Courts in some states have refused to enforce arbitration clauses in nursing home contracts.
A Personal Injury Lawyer Can Help
The law surrounding injuries caused by nursing home care is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a personal injury lawyer.