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An Overview of Nursing Home Negligence Lawyers & Lawsuits

An Overview of Nursing Home Negligence Lawyers & Lawsuits

A senior man thinking about nursing home negligence law

Nursing home negligence is a serious issue in the facilities in the United States and abroad. However, sometimes nursing home negligence may be hard to recognize. Residents who have been injured in nursing homes may be eligible for compensation.

When is a Nursing Home Liable for Damages?

nursing home can be sued based on the conduct of an employee or based on an ongoing practice at the nursing home.

In What Types of Elder Care Facilities Can Elder Abuse or Neglect Occur?

There’s an increasing array of care options available today for seniors, retirees, the aged and the frail elderly, including nursing homes (also known as skilled nursing units or skilled nursing facilities), rehabilitation centers, senior centers, senior living centers, retirement communities, rest homes, convalescent care centers, long-term care facilities, memory care homes and facilities, assisted living residences, adult day care centers and adult day care programs. These entities can be sued in cases of negligence, neglect or abuse of a resident or participant.

An elderly man signing a retainer with a nursing home negligence attorney

What Kinds of Lawsuits Can Be Filed Against Nursing Homes?

Personal injury or medical malpractice claims can be brought against nursing homes. Medical malpractice cases, also called medical negligence cases, are a type of personal injury case brought against hospitals, nursing homes, physicians and other types of healthcare providers and facilities. Medical malpractice lawsuits are one of the most complicated types of personal injury lawsuits and benefit from the involvement of a skilled nursing home medical malpractice attorney.

What’s the Difference Between Civil and Criminal Cases?

Civil cases typically involve conflicts between individuals or entities such as a business, nonprofit or the government, whereas criminal cases involve crimes against the state, in which the welfare of society as a whole comes into play.

Do Nursing Home Negligence Cases Involve the Civil or Criminal Court System?

Both civil and criminal cases can be filed against nursing homes. Civil law applies in less severe cases. Criminal law may apply in cases of physical or sexual assault or in wrongful death cases involving gross negligence (see below). A qualified nursing home neglect lawyer can determine what type of case you have.

What are Some Reasons for Filing Civil Lawsuits Against Nursing Homes?

Nursing homes can be sued in civil court for many different reasons. Examples include failure to provide medical care in accord with existing standards of care, failure to adequately screen employees during the hiring process, failure to adequately train employees, failure to maintain adequate sanitation and safety in the environment and failure to properly supervise residents.

What is Nursing Home Negligence and How Do You Prove It?

In a legal context, “negligence” is one of three forms of tort (i.e. harm and injury) law and is defined as “conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.” Negligence can be an action or an omission (a failure to act). Five basic legal conditions must be met for lawsuits based on claims of negligence:

  1.      There must be a legally-defined duty (i.e. obligation) between the parties. (e.g. Motorists have a duty to other motorists to drive safely, while doctors have a duty to provide a certain standard of medical care to patients.)
  2.      There was a failure to fulfill that legal duty, known in legal terms as a “breach.”
  3.      That breach is proven to be the cause of harm.
  4.      The harm that occurred was foreseeable.
  5.      The harm falls under legally-recognized form of damages, such as mental anguish, pain and suffering, medical expenses or lost wages, among others.

What is Neglect?

Neglect is a type of negligence that occurs in a context of care provision, that is, a breach of or a failure to provide adequate care when there is a legal obligation to do so, such as parents providing care for children or a nursing home providing care for elderly residents.

An elderly woman who has fallen down and filed a nursing home negligence lawsuit

What are the Four Types of Nursing Home Neglect?

Nursing home neglect can involve a failure to meet four different kinds of human needs: medical care, personal hygiene and grooming, social and emotional needs, and very basic needs such as food and hydration.

How Can You Spot Nursing Home Neglect?

Nursing home neglect can be challenging to pinpoint because the indicators may not be obvious and can be easily overlooked. Sometimes the effects of neglect accrue gradually and friends and relatives who live out of town or otherwise don’t see the resident frequently may not notice subtle changes. Elderly residents themselves may have difficulty articulating concerns about their care or may not be able to communicate at all.

What is the Difference Between Nursing Home Abuse and Neglect?

Nursing home abuse occurs in cases where there was a conscious intent to harm a nursing home resident as opposed to neglect which is unintentional harm.

What Are Some Common Signs of Nursing Home Abuse and Neglect?

  •        Changes in social behavior, attitudes or demeanor, such as growing increasingly quiet or social withdrawal
  •        Bed sores resulting from failure to reposition the resident with sufficient frequency
  •        Rapid weight loss or gain or other changes in appearance
  •        Dehydration
  •        An increase in the frequency of illness or infection
  •        Unexplained injuries, bruises, rashes or cuts
  •        A decrease in mobility or ambulation
  •        Reluctance to speak or other visible discomfort in the presence of nursing home staff
  •        Resident appearing overly sedated
  •        Medications not being administered according to the provider’s orders
  •        A dirty facility, room or bathroom

What is Gross Negligence?

Gross negligence is a demonstration of severe, reckless or deliberate disregard for the safety, welfare and lives of others to such a degree that it becomes a conscious violation of others’ right to safety. Gross negligence is not inadvertence, which is a simple misunderstanding of the law.

Gross negligence does not imply an intent to harm someone, but situations in which the perpetrator knew, or should have known, that their actions will result in harm to another. A nursing home attorney knows how to distinguish gross negligence from ordinary negligence.

What is an Example of Gross Negligence in a Nursing Home?

An example of gross negligence in a nursing home setting would be when a medical procedure is performed on the wrong patient. Failure to properly identify a patient in such circumstances constitutes gross negligence.

What is Ordinary Negligence?

Ordinary negligence is a lower level of negligence in which the offending behavior is not deemed to be reckless disregard. Rather, it’s a failure to take common precautions to prevent harm that any reasonable or prudent person would take in a similar situation, more along the lines of a careless error or inadvertent oversight.

What Are Examples of Ordinary Negligence in a Nursing Home?

Examples of ordinary negligence in a nursing home include inadequate supervision of nursing homes residents who are considered a fall risk, failure to keep the facility free of obstacles and hazards, and failure to maintain adequate cleanliness.

What Kinds of Damages Can Be Awarded in Cases of Ordinary Negligence in Nursing Homes?

In a civil lawsuit, a nursing home attorney can recover costs associated with injury resulting from ordinary negligence, such as healthcare expenses and property damage. A nursing home attorney can also recover monetary awards for pain, suffering and mental anguish.

What is a Statute of Limitations?

A statute of limitations is a law that sets forth the window of opportunity following an injury in which legal claims can be made. They apply to both civil and criminal cases and date back to the date of injury, the date the injury was discovered, or the date by which the injury would have been discovered with reasonable effort. Statutes of limitations vary by jurisdiction (geographic area of legal authority) and type of claim.

What is the Statute of Limitations for Filing a Nursing Home Lawsuit?

Statutes of limitation in nursing home cases vary by state and range from one to six years. The majority of states, more than half, have either two or three-year statutes of limitations.

What is the Statute of Limitations for Government-Run Nursing Homes?

Some states have laws limiting the statute of limitations for lawsuits directed at government-run nursing homes to one year.

What’s an Arbitration Clause and How Does It Affect the Right to Sue a Nursing Home?

Binding arbitration is an alternative dispute resolution process. Unlike lawsuits which take place in court and are public record, arbitration is conducted privately and involves an arbitrator rather than a judge or jury. An arbitration clause in a nursing home contract, also known as a pre-dispute binding arbitration agreement, requires that private arbitration rather than the court system be used in the case of nursing home resident injury or death.

Increasing numbers of nursing homes are placing arbitration clauses in nursing home paperwork in an attempt to prevent costly lawsuits and to keep their deficiencies away from the public eye. As of 2017, more than a million elderly Americans may have waived away their rights to sue their nursing home. Experts believe that as many as half of all nursing home residents are currently bound by arbitration agreements and that number is expected to rise. Elder rights advocates estimate that nearly 90 percent of all nursing homes operated by large chains include arbitration agreements in their paperwork.

If you or a loved one is considering admission to a nursing home, it’s best to consult with a nursing home negligence attorney prior to signing an arbitration agreement if there’s concern about maintaining the right to sue in the case of negligence, abuse or neglect.

Do Arbitration Agreements Have to Be Signed?

If you want to retain the right to sue a nursing home you can request that the nursing home remove the arbitration clause from their contract. Signing an arbitration agreement may not in fact be a condition of admission to the nursing home.

Can Arbitration Clauses Be Challenged by Nursing Home Abuse and Neglect Lawyers?

The answer is yes, arbitration clauses have been successfully challenged by nursing home attorneys.