Nursing Home Negligence
The decision to place a loved one in a nursing home is a difficult one, to say the least. In making that decision, friends and family place their trust in the nursing home to provide medical care and supervision and to keep the resident free from abuse. It is this position of trust that makes it so egregious when a loved one is neglected, abused or injured by negligence while being cared for at a nursing home.
Types of Nursing Home Cases
Every case involving nursing home negligence, neglect or abuse is heartbreaking, and every case is unique. The following are common “types” of nursing home cases:
Negligence: Nursing homes owe a duty of care to their patients and residents. When a nursing home breaches this duty of care, it can be sued for negligence. Common breaches include failures to adequately assess residents upon intake and to provide medically necessary care. Other breaches include failure to keep a resident safe from hazards, failure to prevent unsanitary conditions, and failure to provide proper nutrition.
Physical Abuse: These claims sometimes involve outright physical abuse by staff (and sometimes by other residents). These claims also include using improper restraints on a resident, including the use and overuse of medications.
Sexual Abuse: These claims involve sexual abuse of a resident by either nursing home staff or by other residents. Residents with dementia are particularly vulnerable to this type of abuse because their credibility about what happened to them is more easily challenged.
Emotional Abuse: Emotional abuse includes violations of a resident’s dignity and often take the form of threats and intimidation.
Financial Abuse: Those inside nursing homes, both staff and residents, may end up with access to a resident’s personal financial information. Financial abuse can take many forms, but the goal of the perpetrator is to take money and/or property from the resident. Residents with dementia are especially vulnerable to this type of abuse.
Types of Nursing Home Negligence Injuries / Signs of Nursing Home Neglect
Just as nursing homes have become part of the fabric of American society, so too have nursing home injuries, abuse and neglect. The following are common injuries in nursing home cases and should be regarded as signs of neglect:
Falls, often resulting in bruises and broken bones
Infections, especially recurring infections
Over-prescribing of medication
Other signs of neglect and/or abuse include social and emotional withdrawal, uncharacteristic silences around caretakers and loved ones, poor nutrition, poor hygiene, weight loss (especially sudden weight loss), bruising around the genitals, and unexplained injuries.
Not all nursing home cases involve physical injuries to the resident. Many in nursing homes are also targeted for financial crimes and are victimized financially. Signs of this type of abuse include sudden financial troubles, unpaid bills and changes to legal documents such as wills and powers of attorney.
Types of Claims Against Nursing Homes
Following are types of claims that are often pled against nursing homes:
Corporate Negligence: This is a theory of liability in which the nursing home is directly liable for injury if it had actual or constructive knowledge of institutional failures or deviations from the standard of care that caused the plaintiff’s injury. Examples of this type of negligence include failure to adequately staff the nursing home, failure to adequately select, train and maintain support staff, and failure to create and enforce policies for ensuring that residents receive adequate care. These claims are developed during litigation by establishing patterns and practices of corporate behavior that deviate from the appropriate standard of care.
Vicarious Liability for Employee: If a nursing home employee acts negligently during the course and scope of his or her employment, the nursing home can be held liable for the actions or inactions of the employee. In other words, with this type of claim, a nursing home can be held responsible for the negligence of its employee. It is the actions or inactions of the employee that form the breach of the nursing home’s duty of care.
Statutory Violations: There are both federal and Pennsylvania regulations that set forth requirements for nursing homes. In Pennsylvania, the Department of Welfare is responsible for regulating most nursing homes. 62 P.S. § 1001 et seq. and 55 Pa. Code § 2600.4. Pennsylvania also has 18 Pa.C.S.A. § 2713 “Neglect of Care Dependent Person,” which expresses the fundamental public policy of the Commonwealth of Pennsylvania that elders, like children, are not to be abused or neglected, particularly in health care facilities or by persons/entities holding themselves out as trained professionals, and that if such abuse or neglect causes injury, either physical or mental, then such conduct is actionable. Another statutory provision that can be used in a nursing home case is 35 P.S. § 10225.101, et seq. “Pennsylvania Older Adults Protective Services Act,” which sets forth civil penalties, administrative penalties and other consequences for abuse of a care-dependent person.
Most nursing homes also receive funds from Medicare and Medicaid and therefore must comply with comparable federal statutes and regulations governing nursing homes.
Statutory violations can be used to develop evidence of negligence and violations in the standard of care. They can be used to help establish a legal claim for negligence.
Arbitration Clauses & Breach of Contract Claims
The admission agreement in which the resident agrees to pay the nursing home for its services can also have an important impact on claims against the nursing home. Most notably, nursing homes include arbitration clauses in these contracts. Such clauses attempt to deprive the resident of access to the courts by restricting claims against the nursing home to resolution by arbitration. Sometimes these clauses are not enforceable.