Nursing Home Abuse and Negligence Law
Many elderly adults are abused by nursing homes or other facilities responsible for their care. The National Center on Elder Abuse has estimated that one nursing home patient out of 20 has been the victim of negligence or injury and notes that the number may be higher than this. However, most nursing home abuse and negligence cases go unreported and unknown to an elderly person’s loved ones.
Even after suspicion is cast on a particular situation, it can be difficult to prove elder abuse. Partly this is because, as people age, their hearing, eyesight, and mental acuity decline, making it hard for them to know or to communicate with certainty that abuse has occurred. Among the types of elder abuse are physical abuse, emotional abuse, sexual abuse, financial abuse, and neglect.
Nursing home neglect is one of the most common types of elder abuse. Many nursing homes are understaffed and underfunded, and they may have too many residents in proportion to caregivers. The resident may not receive adequate medical or emotional attention. It can be hard to know whether nursing home neglect is a factor in an elderly person’s decline.
Some common signs of nursing home abuse are unexplained types of injury, such as welts, fractures, or rope marks on the elderly person’s wrists, bedsores, frequent arguments between a caregiver and an elderly person, unusual weight loss or malnutrition, unsuitable clothing for the weather, significant withdrawals from an elderly person’s bank accounts, falling injuries, and caregivers who refuse to let family members visit alone with an elderly person.
Lawsuits Against a Nursing Home
You can hold a nursing home liable for elder abuse if you can show the nursing home’s duty to the elderly person, a breach in this duty of care, actual and proximate causation, and actual damages suffered by the elderly person. Most commonly, nursing home liability stems from the negligent care of an elderly person, but it can also arise from negligent maintenance of the premises, negligent selection of equipment, or negligent hiring and retention of employees. Under a theory of vicarious liability, a nursing home can often be held responsible for an individual caregiver’s negligence if that caregiver is an employee, even if the nursing home did not direct the actions of the caregiver.
In general, the plaintiff and the nursing home may both provide expert testimony on what duty was owed to an elderly person, and whether that duty was breached in a particular case. When the abuse is egregious and obvious, an expert’s testimony will not be necessary. However, many elder abuse cases involve issues that are not readily understood by a layperson. These may include the appropriate practices after an elderly person starts exhibiting signs of a medical condition or appropriate staffing in a nursing home.
In some states, statutes or regulations govern the minimum standard of care for a private nursing home. There, it may be possible for a plaintiff to assert negligence per se if a nursing home’s violation of minimum standards causes an injury to an elderly resident. However, even when a minimum licensing standard is met, a nursing home may fall below the general standard of care.
Nursing homes may defend themselves by showing that a particular resident’s injury was inevitable because of poor health or medical complications. In general, however, a defendant takes a victim as it finds him or her. This means that, even though a resident may have a pre-existing medical condition or particular fragility due to age, the nursing home is liable if it causes an exacerbation of that condition.
A nursing home may face not only tort liability in an elder abuse case but also a potential breach of contract cause of action. In some states, there are criminal penalties also associated with elder abuse.
