Guide to Taking Legal Action for Elder Abuse in Nursing Homes

According to the Centers for Disease Control (CDC), each year in the United States there are more than a half a million reported cases of elder abuse. Because thousands of cases go undiscovered and unreported, the actual number is considerably higher. While elder abuse in nursing homes is pandemic, there are even more cases of abuse occurring in private settings.

The Nursing Home Reform Act

In 1987, Congress passed the Nursing Home Reform Act. The act applies to all nursing home facilities receiving Medicare and Medicaid funding. Under the act, nursing homes...

...must provide services and activities to attain the highest practicable physical, mental, and psychological well-being of each resident in accordance with a written plan of care."

To ensure compliance with federal regulations, nursing homes receiving federal funds are subject to periodic unannounced visits by federal investigators. When found to be in violation of the provisions of the act, Medicare and Medicaid may deny continued funding.

Many states followed federal legislation by enacting their own nursing home reform acts. While legislation has helped to identify acts of elder abuse, it's not yet far-reaching enough to end continuing patterns of abuse in thousands of nursing homes and private settings throughout the country.

Forms of Nursing Home Abuse

The elderly are most vulnerable when they become dependent on nursing home care. Physical infirmity and dementia make them easy prey for unscrupulous nursing home owners and staff.

Greed often plays a substantial role in elder abuse in nursing homes. Motivated by profit, many nursing home owners employ caregivers who are poorly trained, or hire people without first conducting adequate background checks (in some cases employing people with histories of abuse and aggressive behavior).

The most commonly reported types of abuse are:

Bedsores and infection

Bedsores occur when elderly patients aren't turned or repositioned periodically. The abrasive nature of bed sheets combined with an absence of hygienic cleansing wears away the skin, and bacteria can build up. As it does, it causes the sore to become infected. Left untreated, the infection can travel through the elderly patient's bloodstream and poison her.

Dehydration and malnutrition

Many elders are bedridden or debilitated. They often can't find water or other liquids on their own. When staff fails to keep patients properly hydrated, patients weaken, making them vulnerable to infections and viruses pervasive in nursing home environments.

Malnutrition can occur when the elderly patient eats food lacking essential nutrients, or when the patient doesn't get enough food to maintain proper strength and bodily functions. Additionally, many elderly patients have dental issues. When they're served food that's difficult or painful to chew, they may eat very little or nothing at all.

Slipping and falling

Slip and falls occur frequently in nursing homes. Elders sometimes have difficulty standing and walking without assistance. Walkers or canes may be lacking or nonexistent. When staff isn't available to help patients to the restroom or to other areas of the premises, many elderly patients choose to go it alone. Without proper assistance, they can quite easily slip and fall.

Spilled liquids are another frequent cause of elderly slip and falls. Slip and fall injuries are much more serious for nursing home patients than for younger people. Elderly patients' bones don't heal as quickly, and their bones are often much more brittle than those of younger people.

Case Study: Neglect in Nursing Home Care
This case deals with a nursing home which failed to provide adequate care to one of its residents. The case is built on negligence theory and breach of contract.

Unnecessary restraint

Often physical restraint of elderly patients is necessary for their safety and wellbeing. Without some form of restraint, debilitated patients may attempt to get up and walk, resulting in fall injuries. Restraints are sometimes necessary to prevent patients with dementia from wandering off the nursing home premises where they can become easily hurt in the street or in other dangerous places.

Common forms of restraints used in nursing homes include vests, belts, wheelchairs, tightly tucked sheets and blankets, and tipped chairs. Federal and state laws are clear in their rules about restraints. They are for use only when absolutely necessary to protect the safety of the patient.

Unfortunately, nursing home staff often abuse the use of physical restraints. They may not want the bother of assisting some patients to move about. In some cases, because of inadequate staffing, caregivers use restraints on elderly patients until they can get to them. This frequently results in patients urinating or defecating in their beds. The mere idea of unnecessary restraint is akin to false imprisonment.

Physical and sexual abuse

Uncaring, lazy, and malicious staff members frequently use physical abuse as a means of subduing nursing home residents. Rather than having to deal with their cries for help, some staff members use aggressive tactics, striking patients to make them fearful of additional physical retaliation if they continue to cry out.

Some staff members use physical abuse as a means of punishment. A staff member may strike an elder for dropping food, or urinating on himself, or some other action the staff member considers objectionable.

For many, sexual abuse of nursing home patients seems unfathomable. Yet sexual abuse of elderly patients occurs with regularity. Sexual abuse is unwanted touching, rape, or the sodomizing of an elderly person. Because some patients suffer dementia, staff members, visitors, and even family members can easily manipulate them.

Physical and sexual abuse is a criminal act, subjecting the abuser, and sometimes the supervisor and nursing home owner, to lengthy prison sentences.

Case Study: Failure to Adequately Screen Staff
In this lawsuit, a nurse with prior misdemeanor battery offenses was not adequately screened by the facility where she was hired. She ultimately assaulted a resident.

Case Study: Nursing Home Sexual Abuse by Employee
In this sexual abuse lawsuit, criminal charges were filed against an attendant who sexually abused a female resident numerous times.

Lack of medical care

Because many nursing homes provide medical care to elderly patients or allow outside physicians to provide care, they're subject to medical malpractice claims. Medical malpractice is a form of negligence occurring when the nursing home or its authorized medical provider's care "deviates from acceptable standards of medical care, resulting in injury to a patient."

Medical malpractice includes denial of a patient's medications, incorrect dosing of medications, failure to provide necessary medical tests and examinations, patient abandonment, and failure to identify and treat symptoms of illness.

Building a Case: Evidence

Building a nursing home negligence claim requires evidence of wrongdoing. To gather the evidence, you need to begin with identifying the nature and extent of the abuse or neglect.

Listen closely and carefully to a loved one.
Take what she has to say seriously. Don't dismiss her reports, especially when complaining of mistreatment. Always remain sensitive to her overall appearance and personality. Changes in mood, lack of hygiene, and the appearance of swelling or bruising are clear indicators of abuse. Take notes about everything your loved one tells you.

Speak with staff members and supervisors.
If you don't have a micro-recorder, you can buy one for less than $30. Record everything the staff member, supervisor, or nursing home owner has to say. In all 50 states, it's perfectly legal to record a conversation between you and another person (although in some situations it may not be admissible in court). Once they make a statement, it's virtually impossible for them to take it back.

To cover up abuse, staff members, supervisors, and owners are often well-versed and practiced at manipulation. Favor your loved one's interpretation of abuse over that of the nursing home's.

Speak with other people who've placed their loved ones in the same nursing home. Determine if they made similar observations or complained of similar abuses. Get their names and contact information. Ask if they're willing to write down a statement setting out the abuses their loved ones suffered.

Take photographs of a loved one's bedsores or infections.
The same for bruises or abrasions (scrapes) to the skin. Photograph dirty sheets, dirty bathrooms, and other conditions you think contributed to your loved one's injuries.

Remove your loved one from the nursing home as soon as possible.
You have a legal duty to mitigate the damages to your loved one. You can't complain about abuse and then leave your loved one there to suffer. Not only would doing so make you an accomplice, but your credibility would be destroyed.

Local authorities must be told about any elder abuse in nursing homes. Physical and sexual abuse are crimes. In addition, federal or state nursing home laws regulate most nursing homes, so they can fine and/or close down the home.

Hiring an Attorney

Only an experienced personal injury attorney should handle a nursing home abuse claim. Today, many attorneys limit their practices to elder law. They have special training and experience in identifying nursing home physical abuse and neglect. Most elder law attorneys won't charge a fee for an initial office visit.

When it comes to nursing home abuse, you may have two claims. One for negligence, and another for medical malpractice. The statute of limitations for elder abuse and medical malpractice varies from state to state. It ranges anywhere from one to five years, depending on the type of negligence and the time you first discovered it, so you must move as quickly as possible.

Experienced elder law attorneys have substantial legal powers. They can issue subpoenas for nursing home records, including employee background checks (or the lack thereof), prior patient complaints, the names of family members who previously took legal action against the nursing home, and much more.

Your attorney can take depositions (recorded and sworn statements) of current and former staff members to learn what they knew about previous abuse, and what management or ownership did to remedy the abuse.

More importantly, your attorney can file a lawsuit. If successful, he can recover money for the cost of your loved one's future medical care, your out-of-pocket expenses, your lost wages while attending to your loved one's needs, and for the pain and suffering and emotional distress your loved one suffered at the hands of the nursing home.

Also, if your attorney can prove the nursing home's actions went beyond negligence and rose to the level of reckless conduct, or were criminal, your loved one may receive punitive damages. Punitive damages are the court's way of punishing the nursing home for its actions. In severe cases, punitive damages can reach into the millions of dollars.

If the abuse is substantial enough, your attorney may be able to force the nursing home out of business. Either way, your actions will serve to help other families who continue to entrust their loved ones to nursing homes.

Elder Abuse & Neglect Resources - Here we provide a variety of online resources showing exactly how to spot elder abuse and neglect and what to do about it.

More Case Studies:

Resident Wanders from Assisted Living Facility
A new resident with a history of wandering is not checked-on according to the required schedule and walks out of the facility, resulting in multiple injuries.

Physical Assault Results from Nursing Home Neglect
A man with Alzheimer's disease is inadequately supervised in a nursing home and attacks his wife. The nursing home was assigned partial fault due to their lack of required supervision.

Real life case examples:

Negligence Lawsuit Alleging Stolen Medication
In this case, plaintiffs allege the nursing home failed to provide adequate care for a resident resulting in serious medical problems. The plantiff's attorney alleges nursing home staff stole the plaintiff's medication.

Settlement Given After Salmonella Outbreak
This case ends in settlement. It came about when a nursing home experienced a serious outbreak of salmonella, sending many residents to the hospital.

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