Nursing Home Injuries - An Overview

Individuals reside at nursing homes or long-term care facilities to ensure that they are well cared for. Patients may be any age, however, most are elderly persons who need assistance with basic care. Nursing homes provide basic necessities such as food, shelter, clothing and medical care. Along with basic necessities, we expect residents to be treated with dignity and respect. Dignity and respect include the right to privacy, communication with loved ones, visitors, control over medical records/decisions and a good quality of life. However, sometimes nursing home residents do not have a good quality of life and are mistreated while in the care of a long-term facility. Mistreatment may be in the form of abuse, neglect or exploitation by a staff member or another individual in the care facility. If your loved one is a patient who has been harmed in a nursing home, contact an experienced and compassionate nursing home attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO to learn about your legal options.

Over the past decades, the public has been made aware of this growing problem within our society. This has lead to the federal and state legislatures enacting laws to protect nursing home residents. Statutes protect against mental and physical abuse, neglect and exploitation. There are legal options for a victim of nursing home abuse, or loved one of an abused resident. Legal options include civil actions, breach of contract claims and criminal liability for those guilty of abuse. The types of proceedings have different objectives. A civil action is a claim for monetary damages and breach of contract may also include redress damages. Alternatively, criminal prosecution does not compensate the victim of abuse, but punishes the person, or persons, guilty of committing the harmful conduct. If a care facility is found liable of abuse, or knowledge of abuse, there may be sanctions available as well. Sanctions may include stripping the care facility of its license to operate, loss of federal and state Medicaid revenues, preventing a health care provider from participating in the Medicaid program and fines for violations of state and federal protection regulations.

Legislatures have also created nursing home resident rights. If a long-term care facility wants to receive government funding, they must provide these rights. The Patient Bill of Rights may differ from state to state. However, the basic rights include financial, medical, social, safety and administrative rights. Resident Rights focus on quality of life, dignity, respect and the ability to make his or her own choices. The intent of state and federal statutory protections is to give patients a voice in their care, outlet for grievances and protection for those who cannot voice their grievances.

 

Nursing Home Resident Abuse Become an Increasing Problem

Now that people are aware of nursing home abuse, we want to know why it is happening. There may be multiple reasons for the increase in incidents of abuse in recent years. Some of these reasons may be staffing issues, inaccurate record keeping of incidents, care facilities focus on profit, the growing number of elderly persons in our country and the lack of care for our nation’s elderly or nursing home resident population. The growing demand for nursing home placement is a concern. There is an ever-growing number of potential patients and not enough health-care facilities to meet the demand. Standards fall through the cracks when there is a scramble to meet this need. One standard concerns the staff members in long-term care facilities. Many nursing homes are understaffed and poorly trained. The understaffing may be due to the low wage offered to employees, high employee turnover or a lack of job satisfaction. There are not enough skilled caregivers to meet the care facilities needs.

Nursing homes are in the business of care-giving, but are a business. In some cases, care facilities focus on the business and not the patients. There is a focus on profit. Less care and understaffing may lead to higher profits. Although healthcare professionals should be making decisions based on patient care, it is often the corporate accountants who are making the decisions for the company's bottom line and not for the residents well being. This may also lead to inaccurate records being kept by nursing home facilities. Paper records required by state and federal law may be altered. Often regulatory authorities require written incidents of abuse and altering these records may make reporting numbers inaccurate. This in turn may ensure that facilities continue to receive their state funding, which also helps the bottom line.

Along with our growing number of nursing home patients and profit-focused facilities, is society’s lack of care for our elderly citizens. As a country, there has been a decline in respect and care of our elderly family members over the years. This may be shown in conscious disregard or wanton conduct by employees. It is also shown by family members who leave their loved one in the control of a long-term care facility and forget about them. When this occurs, the nursing home has no accountability to family members. Nobody is watching out for signs of abuse, neglect or exploitation of their loved ones and nobody is taking responsibility for taking care of their elderly or infirm family members. Without this responsibility, residents may become easy targets. They are dependent on their caregivers and may be infirm or frail, mentally incapacitated or easy to intimidate. Often, this leads to unreported cases of abuse and adds to the growing epidemic of nursing home abuse in our country. If your loved one is a patient who has been harmed in a nursing home, contact an experienced and compassionate nursing home attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO to learn about your legal options.

 

Negligence in the Nursing Home Setting

Injuries that occur in a nursing home require immediate intervention from an Elder law attorney who knows how to protect your rights, or the rights of your loved one, and negotiate the best possible result according to the facts and applicable law. Don't delay. Contact our firm today to schedule a consultation with a nursing home abuse attorney. 

A nursing home is generally a facility that provides shelter, food and care for the sick, elderly or infirm. Different terms are used in case law to describe a nursing home facility, such as: rest home, old age home, convalescent home, special care facility, assisted living facility or retirement facility. Nursing homes are often thought of as facilities for the elderly, generally, an elder is someone 65 years of age or older. While it is true that a majority of residents in nursing homes are elderly, residents may be a person of any age who is dependent either mentally or physically for care. Although these care facilities provide health care by trained professionals, they are not hospitals and may have different requirements according to state and federal law. A common state or federal requirement is that nursing homes must provide a general standard of care based on what similar caregivers and facilities provide in the community. Facilities that do not meet this general standard of care may be liable for violation of state and federal negligence laws. If you or a loved one has been harmed by a nursing home resident, contact an attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO for advice about protecting your legal rights and seeking recompense for injury.

 

Standard of Care/Negligence Per Se/Ordinary Negligence

In addition to the general standard of care, state and federal law have requirements for nursing home facilities that protect against mistreatment or abuse of residents. The Older Americans Act defines elder abuse, neglect and exploitation. The definitions in this act set a framework for states to follow when identifying elder abuse. Three types of abuse in the act are as follows: self-neglect or self-abuse (which is impairing one's own safety), domestic abuse (committed by a person who has a special relationship with the individual) and institutional abuse (exploitation and mistreatment). The main type of abuse identified in nursing home injuries is institutional abuse. This abuse can be emotional or physical. Emotional abuse is an intentional act that causes emotional pain to another. Some examples may be yelling at a resident, threatening physical abuse, isolating or insulting a resident and denying food or privileges as a form of punishment. Physical abuse may consist of injuries such as bodily harm, malnutrition, bedsores, poor hygiene and deprivation of medical care. Physical injuries often lead to a claim for negligence.

A nursing home or healthcare facility must exercise reasonable care to avoid injury to their patient’s physical and mental state. Such a facility has special knowledge of resident ailments and must respond accordingly to prevent further harm. If reasonable care or prevention is not given, a facility may be held liable. Additionally, a nursing home may be held liable for injuries caused by negligence of an employee. This includes negligence acts of an employee, negligence supervision of employees, negligent hiring, employee retention and maintenance of facilities and equipment. If there has been an injury due to negligence, residents and/or their families may have a claim against the care facility for institutional elder abuse through negligence per se and ordinary negligence actions. For negligence per se claim, the plaintiff must belong to a class of individuals protected by statute. Violation of the statute is negligence as a matter of law. State and federal statutes lay out the minimum standards of care that a nursing home must abide by in regards to caring for their patients, facilities and supervision and hiring of employees. If these standards are not met, there may be a claim for negligence per se.

To have a claim for ordinary negligence, four elements must be met: 1. the nursing home has a duty to the resident (this may often be through contract), 2. the nursing home has breached this duty (deviation from the statutory or contractual standard of care), 3. the breach has caused the resident's injury (the injury was caused by the defendant or would not have occurred but not for the defendant's action) and 4. the patient suffered damages (damages may include: healthcare expenses, pain, suffering, mental anguish and a diminished capacity to enjoy life).

 

Nursing Home Requirements and Claims

Nursing home facilities are required by federal law to screen potential employees and do a criminal background check prior to hiring them. State and federal regulations for long-term care facilities place minimal requirements for nursing homes and their employees. Along with these minimal requirements, most states also have regulations that provide for periodic inspections of facilities, mandatory reporting or abuse or neglect and employee licensing criteria (42 CFR 483.1 et seq). Some additional state requirements may include minimum hours of skilled care per patient per day, special prerequisites for nurses and aids and not hiring employees who have been previously found guilty of neglect, mistreatment or abuse by the court of law. If a nursing home facility does not abide by state or federal regulations regarding resident care, employee standards and maintaining facilities and equipment, they may be liable of negligence per se or ordinary negligence. In addition to negligence, some other claims may be Premises Liability (A resident may be considered an invitee. The facility would owe the invitee a duty of care to keep the premises safe. So a facility may be liable for an injury caused by an unreasonably unsafe condition on the premises.), Inadequate Security (There may be neglect if an injury is caused by inadequate staffing, understaffing or inattentive staffing.), Medical Malpractice (A facility may be liable for a medical error in providing care by a trained professional.) and Wrongful Death (A facility may be liable from a death due to negligence, abuse or injury caused at a facility or due to the employees.). If you or a loved one has been harmed while a nursing home resident, contact an attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO for advice about protecting your legal rights and seeking recompense for injury.

 

Your Rights as a Resident of a Nursing Home

The federal 1987 Nursing Home Reform Law guarantees rights to residents of nursing homes. If nursing facilities wish to benefit from federal funding, such as Medicaid or Medicare, they must abide by the statutory requirements for resident rights in their facility. Rights focus on quality of life, dignity, respect and the ability to make their own choices. Both state and federal laws contain a Resident's Bill of Rights. Those include the rights of all United States citizens and/or resident aliens and focus on patient dignity and quality of life. If you or a loved one's rights have been violated by a nursing home, contact an experienced elder law attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO to discuss your legal options.

 

Resident Bill of Rights

States may have their own regulations regarding what rights must be given to each nursing home resident. Although some state laws may vary in regards to patient rights, some basic rights will be included in most regulatory laws. One regulatory right that all long-term care facilities must have is verbal and written notice of all resident rights available to patients. This notice must list and explain all rights and services provided to each resident. A facility will be violating state and federal regulations if such a notice is not provided. Additionally, some basic types of rights include financial, medical, social, safety and administrative rights.

 

Financial Rights

Residents have the right to be fully informed (verbally and in writing) of not only services that the facility provides, but also any charges for services not provided by the nursing home, or extra charges that a resident may incur during their stay at the care facility. Resident must also be able to manage their own finances as long as they have the capacity to do so. Those who no longer have the capacity to manage their finances on their own shall be informed of their financial status.

 

Medical Rights

Patients of nursing home facilities shall be assured adequate medical care and be fully informed of their medical condition. Residents have the right to refuse medical treatment, choose their doctor, receive information on decisions regarding their care and to keep their medical records private. If the resident is mentally able to make decisions on their behalf, they should be given the opportunity to do so regarding medical decisions, changes and medical care.

 

Social Rights

Patients of long-term care facilities have the right to be treated with respect, dignity and privacy. These rights may seem basic to all human beings. However, they are often violated when the patient is weak, frail of body or mind or intimidated. Residents should have the right to see their family, doctors, attorneys and others of their choosing. In addition, the right to communicate privately with individuals via telephone and mail are important for nursing home patients. Residents should have the right to keep their possessions and clothing and to participate in social, community and religious groups and activities as well.

Safety

Each individual has the right to be free of verbal, sexual or physical abuse. This right is important in the nursing home setting. Patients quality of life should be enhanced by living in a nursing facility, safety should never be in question. Abuse is something that loved ones should watch for when visiting a resident of a care facility. This includes safety measures used by facility staff members, commonly restraints. Restraints should be used by doctors orders for an individuals own safety. If restraints are used for any other reason, this is a misapplication of restraint and is abuse.

 

Administrative

Nursing home residents have rights to participate in administrative processes regarding their own care. This includes notice of room change, roommate change, transfer and the opportunity to appeal any change. A patient can only be discharged or transferred from a facility for medical reasons. Financial means of a patient can never be used for transferal or ejectment from a facility. Individuals have the right to apply for Medicare or Medicaid, but must be made aware of the application process from nursing home staff and must be treated the same as private payers. If an individual is not treated well or has complaints, he or she must be able to voice any concerns or grievances. This includes access and information on the facility complaint procedure, the ability to file a complaint about any mistreatment and information on where/how to file a complaint.

Along with the rights discussed above, nursing home facilities must also provide services under the Reform Act. Some of the services provided must include periodic assessment of all residents, a care plan for each resident, healthcare, nursing, rehabilitative, social and pharmaceutical services and availability to a social worker (for facilities with over 120 beds). If you or a loved one has been denied basic rights by a nursing home or its employees, contact an elder law attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO to discuss possible legal compensation in your case.

 

Considerations in Proving Damages in Nursing Home Abuse

If a resident has been injured in the care of a nursing home facility or at the hands of a nursing home employee, action must be taken. There are special legal considerations involved when proving injuries of a loved one. Some damages may be mental suffering, disfigurement, loss of enjoyment in life, shortened life expectancy or malicious and reckless conduct by the nursing home staff. The injured individual may bring a claim for injuries suffered or if they are unable to bring a claim, a loved one may bring a claim for damages on their behalf. If you are a nursing home resident who has been harmed in the nursing home setting, or if you care about such an individual, you are invited to contact an experienced elder law attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO about the legal rights of nursing home patients.

 

Mental or Physical Suffering

Mental or physical suffering are common forms of abuse suffered by residents of a nursing home facility. Mental abuse is often shows itself in the form of fear. A patient is suffering mental abuse if they are afraid of the consequences while waiting for help. They may be afraid that their injury will worsen as they wait for someone to assist them or afraid that by the time someone comes to their aid the injury will have worsened. A patient may also have had fear at the time the injury occurred and experienced anxiety for their own well-being. After an injury occurs, an individual may fear the consequences of that injury. This may include surgery, further injuries or future injuries that may occur from the person or persons who may have harmed them. Mental suffering may also lead to loss of enjoyment of life. The physical results of an injury may have caused disfigurement or a shortened life expectancy. Although, many residents of a care facility have physical or health problems, their lives should not be halted due to inadequate care and/or abuse. Loss of enjoyment in life may show mental or physical abuse and lead to appropriate damages for that abuse.

 

Punitive Damages

To show punitive damages, there must have been malicious or reckless conduct by the nursing home facility or staff. This conduct may be demonstrated by showing that the nursing home knew of the problems in the facility and did nothing to correct them. Some examples of this wanton conduct include the understaffing of employees, inadequate criminal background checks for staff members and employees not caring for known patient health issues properly. When staff members do not care for patients properly, injuries occur that may be shown to prove punitive damages. Injuries caused by negligent or intentional omissions of care generally fall into six categories: restraint injuries, decubitus ulcers (bedsores), severe dehydration/malnutrition, exposure to the elements (wandering around the facility, elopement/leaving the grounds) and physical abuse or assault (hitting, pushing, force-feeding, unsanitary environment, using unnecessary physical restraints).

Many injured nursing home residents are elderly, have health issues and have shorter life expectancies. Punitive damages may be more common in a nursing home injury case then in other types of personal injury cases. Awards against nursing homes that are punitive damages are usually for mental anguish, pain and suffering experienced by the injured person, medical expenses and the loss of affection and companionship by the surviving spouse or children.

 

Damages Recoverable by Survivors, Heirs or Dependents

In an action against a nursing home where the resident has died, the resident's survivor(s) may bring an action and recover damages. Some damages may be loss of consortium or affection, loss of parental advice and guidance, mental anguish of the survivor and funeral expenses. Due to the growing number of elderly persons in the United States, there has been an increase in lawsuits and damages against nursing homes by loved ones or survivors of injured residents. This increase has caused an increase in liability premiums and has been making it difficult for care facilities to correct the problems. The main problems in nursing home injury cases are due to lack of staff, lack of trained staff and inadequate/poorly maintained equipment in care facilities. As the nursing home abuse epidemic continues, the number of awards for punitive damages will continue to rise. If you or a loved one has been injured due to the fault of a nursing home or its employees, contact an attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO experienced in pursuing legal compensation in these cases.

 

Statutory Protection of Nursing Home Residents

The abuse of nursing home residents has come to the attention of the public in the past few decades. The frequency of abuse was shocking not only to the public, but to lawmakers as well. Some of the abuse brought to light included: physical abuse, deprivation of food, water or medical care and residents being taken advantage of financially. When the widespread nature of this abuse and neglect became known, state and federal legislatures enacted laws to protect elderly persons and other nursing home residents.

There are now federal and state laws to protect residents against abuse, neglect and exploitation. The states may apply these protections differently, but the basic protections are the same. For example, most states have a system of adult protective services for investigating and remedying reported abuse. Generally, abuse or neglect is considered a criminal offense and there is often a civil cause of action for abuse, neglect or exploitation of nursing home residents. Some states also have consumer protection statutes that may provide a statutory duty of care for residents of a nursing or care facility. If you are a nursing home resident who has been mistreated, or if you care about such an individual, do not hesitate to contact an experienced elder law attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO, to pursue appropriate legal redress.

 

Federal Protective Statutes

Most states have enacted protection statutes as the result of federal statutes protecting residents of nursing and care facilities. Among federal protection statutes are Title XX of the Social Security Act, the Long-Term Care Ombudsman Program, the Older Americans Act and the Nursing Home Reform Act.

Title XX of the Social Security Act compels states to fund protective services for adults. Adult Protective Services (APS) was created to protect nursing home residents from abuse, neglect and exploitation by facility staff members or other individuals. By creating APS, states are in compliance with Title XX and able to receive federal funding for state run care facilities. Title XX also lead to Congress directing all states to establish a Long-Term Care Ombudsman program in 1978. The Long-Term Care program provides individuals in nursing or care facilities with protection against neglect and abuse. Likewise, The Older Americans Act creates federal programs designed to identify, prevent and address elder or nursing home resident abuse. As discussed earlier, The Nursing Home Reform Act sets standards for Medicare and Medicaid funded long-term care facilities. Some of the standards include, employee, credentials and licensing requirements, individualized care plans and basic resident rights. The standards set forth in federal law were enacted by the states, although some states differ in application. Even with differing interpretation of federal law, state statutes have the same basic protections against abuse, neglect or exploitation against nursing home residents.

 

Abuse

Abuse of individuals may be physical or emotional. Although specific state definitions may vary, abuse is generally defined as actions that cause emotional or psychological injury or distress. Actions may be hitting, pushing, verbally insulting a resident, causing emotional pain or fear, or in some states, isolation or unreasonable confinement or restraint. The types of abuse and causes of such abuse differs. The courts may look to the affect of such actions to determine whether a resident was abused in violation of state law.

 

Neglect

Most states define neglect as the failure to provide a nursing home or long-term care resident with basic services necessary for health and safety. These services include food, shelter, clothing, supervision and medical care. Deprivation of these basic necessities may harm individuals as much as if they were physically or intentionally harmed. Although such harm may be unintentional or careless, failure to provide basic services may endanger the health and safety of residents and is neglect.

 

Exploitation

Exploitation may be financial or non-financial. Many states define exploitation as the wrongful use of an individual’s finances, property or person for another’s advantage. Generally, a residents personal or financial resources are taken from them without their consent, through undue influence, duress, threats, intimidation, deception or because the individual is incapacitated or unable to give consent.

 

State Protective Statutes

States have enacted protection statutes as a result of federal statutes protecting care facility residents from mistreatment. Mistreatment may be in the forms of abuse, neglect or exploitation. Abuse is typically thought of as physical, but also includes emotional maltreatment. Emotional abuse can cause psychological injury in the abused individual. Abuse or neglect may also be shown by unreasonable confinement of a resident, including unnecessary use of restraints, and deprivation of necessities. Exploitation may also be physical or financial in nature. Examples of physical exploitation are sexual exploitation, threats, intimidation and the inability to give informed consent due to threats and/or intimidation. Financial exploitation includes money or property that is taken from an individual without his or her consent.

 

Civil Actions

Most state statutes provide a civil cause of action for elder or nursing home resident abuse. Victims of criminal negligence by a staff member may pursue a civil remedy of negligence per se against the staff member. To establish negligence per se, four elements must be proven. First, a duty must exist between the resident and the staff member or care facility, this duty is generally by contract. The contract should include minimum standards, which nursing home facilities should abide by as mandated by state and federal law. Second, the injured individual, or loved one of that individual, must prove that the duty was breached by the staff member or care facility. Third, the injured party must demonstrate that the defendant’s conduct proximately caused his or her injury. Lastly, the injury sustained by the plaintiff must exist as a result of the defendant’s conduct.

 

Consumer Protection Statutes

Nursing home facilities owe residents a duty of care via state statutes, federal statutes, contract and at common law. Some states consumer protection statutes may provide relief from a violation of this duty of care. Failure to provide proper care and treatment by a care facility is a violation of care, which arises from the nursing home owing a resident a standard of care generally given by similar facilities in the same area. This general standard of care is the level of care considered reasonable for the patient’s mental and physical circumstances and should keep them from unreasonable risk and harm. Likewise, a care facility may have a professional standard of care due to the resident. Nursing home or long-term care facilities/homes must use a degree of care, skill and standard of practice that are used by similar professionals and facilities in the community.

In addition to consumer protection at common law, there may be a state specific standard of care, in which the facility must abide. Many states have statutes that contain a standard of care a nursing home or long-term care facility must meet for their residents. Some states also require those standards to be contractual and included in patient contracts with the facility. These contractual rights may be known as “patient rights” or “patients bill of rights,” in some jurisdictions.

 

Conclusion

If you or a loved one in a nursing home has been neglected, abused or financially exploited, it is likely that there is a state statute designed specifically to remedy the situation. Do not hesitate to contact an attorney at Dollar, Burns & Becker, L.C. in Kansas City, MO to discuss initiating an investigation with your state's adult protective services and, possibly, a civil lawsuit.

 

For a Free Consultation Contact Us Toll-Free: 1-877-816-2600

It’s important to contact us immediately if you or a loved one has been the victim of negligence or abuse in a nursing home. Initial consultations are free of charge and all of our work is done on a contingency basis.