Older persons usually choose to live in nursing homes or care facilities to make sure that they are taken care of and will be protected from the effects of deteriorating physical and/or mental conditions. Normally, these facilities offer positive and healthy environment as well as pleasing experience for their patients. But there are times that these older people are physically and/or psychologically harmed because of negligence and intentional acts of their caregivers. In this institutional environment, there are some factors that contribute to the abuse of their residents, namely: staff or employees who are poorly qualified and lack of training, employees with history of violence, lack of numbers of employees, isolation of residents, and the fear of the older patients to report abuse.
Liability for Nursing Home Injuries
Nursing home facilities can be held liable for harming others as the result of their abusive acts, negligence, violations of criminal statutes, false imprisonment, violations of policies regarding licensing, overall operations, and maintenance. The acts of neglect, abuse, or exploitation of older people are handled by any of the following proceedings:
- Investigation and finding by an adult protective entity
- Civil cause of action for damages
- Criminal prosecution
Protective services investigation aims at giving immediate assistance and relief to the victims to avoid further harm. The civil action or lawsuit aims at providing the victims remedy damages while the criminal prosecution aims at punishing the harmful act.
Civil Actions against the Nursing Care Homes
Owner of the nursing care home or its employees can be held responsible as a result of the following acts:
- Negligent hiring and retention of employees
- Negligent personal supervision and care
- Negligent selection or maintenance of equipment
- Negligent of maintenance of the area
The nursing home can be held responsible for negligence if the injured older persons can show that:
- The owner of the nursing home or its employees violate their responsibility for care for their residents
- The individual’s injury is caused by such violations
- The owner of the nursing home facility or the employees’ conduct caused the injury.
Since these elements are used similarly to negligent acts by the nursing home guests and residents, here are some discussions regarding some issues that are raised in negligent acts by the residents.
Proving Duty and Breach of Duty
The plaintiff files lawsuit against a nursing home must present medical testimony about the proper and improper practice, procedure, or treatment in a given condition except when the lack of skill or care of the nursing home is obvious that the normal person can understand it based on his/her common knowledge and experience. As an example, if the administrator of a nursing home is said to unable to practice care to maintain nursing home, this will not need an expert testimony while the treatment of a nurse to the condition of the patient may need to have one.
The Statutory Standard of Care
Several states contain enacted statutes or regulations that have set certain minimum standards of care for the private nursing homes. Although nursing home can prove that it adhered to the minimum licensing standards, it may still be responsible for the injuries of the residents. Because of this, it is essential to have a lawyer to research on the applicable standard of care, licensing requirements and other regulations locally.
Another issue that is raise in nursing home litigation is if the injury of the resident is inevitable because of his/her existing poor health, health problems and complications, mental condition, or advanced age. The defendants usually insist that the present health condition of the resident, and not the negligence of the nursing home, is the real and true cause of the injury. However, this should not stop the resident who believes that the nursing home caused his/her injury since there is a well-established rule of law that the defendant takes its victim, finding his/her existing conditions. Hence, the injury of the resident is made worst or more difficult to treat because of the present physical and/or mental condition does not relieve the defendant of his/her responsibility.
During negligence proceedings, nursing homes are allowed to assert all defenses that they have for negligent acts, such as contributory negligence of the injured person, and an assumption of a known risk. But there are conditions where an individual went to a nursing home because he/she needs to be protected from the effects of particular medical conditions, and therefore the defense of contributory negligence may not be permitted.
Breach of Contract
Generally, the nursing home enters into a contract with a resident where it establishes the kind of services it offer and the cost of these services. When the perceived abuse or neglect on the part of the nursing home or its employees opposes to the promises or services stipulated in the contract about the care of the residents, thus, the nursing home can be charged under the theory of the breach of contract. There are several contracts that need only the nursing home offer the services as “reasonably necessary” for the wellbeing of the residents. But although they are under this standard, the nursing home can be found negligent if it is unable to meet the basic needs of the residents.
There are several states that offer criminal penalties for the abuse, neglect, and other forms of maltreatment. According to history, prosecutions for crimes that involve abuse, neglect, and exploitation of the elderly are relatively uncommon. However, prosecutions of such cases increase just recently. Because of this, there are states that improved their penalties for the crimes committed against elderly people. There are even some cases where the nursing homes were unable to provide its residents enough food, keeping the residents clean, or prevent bed sores from happening. These poor conditions supported the convictions for criminal neglect. In some cases, the baseless application of physical limitation or force against the nursing home residents has led in conviction for nursing home abuse. There are certain states also, that the meaning of abuse may need inappropriate physical contact that injure or threatens to harm the residents, and may not include verbal threats.
Obtaining Legal Assistance for Nursing Home Abuse
If you or someone you love suffers injury or abuse as a resident of a nursing home, contact an attorney who is experienced with nursing home abuse cases to discuss with you your case and condition to make sure that your legal rights to compensation are protected, particularly in terms of time limits for filing any lawsuit for nursing home injuries.