It is quite unfortunate that many nursing homes do not pay much attention to elder maltreatment. The National Council on Aging has a study that indicates that more than 5 million seniors suffer abuse every year. One of the most common places of ill treatment is in the nursing homes.
With more than 1.22 million people living in nursing homes across the United States, a large chunk of them are predicted to experience some sort of abuse or neglect while they are there. It’s only natural for family and relatives to expect caregivers to be attentive and compassionate, as they are expected to behave that way in their jobs. But according to Glendora nursing home assault lawyer Garrett Fry, some caregivers in this position take advantage of the seniors in their care. Nearly all nursing home abuse incidents that occur do not end up getting any attention
For a family who seeks to pursue legal action against a facility, the channels to do so are provided by the law but need to be addressed with a sense of immediacy, detail, and understanding of who is culpable.
Understand who bears legal responsibility
According to the law firm website https://www.youngerslaw.com/, elder abuse in nursing homes often occurs at the hands of caretakers who are charged with the elder’s well-being. But abuse claims against nursing homes can reach further than the individual staff member who caused harm. In many situations, the facility itself becomes involved in the case.
The facility may also be held accountable under the doctrine of respondeat superior. This legal doctrine holds an employer accountable for employees’ actions within the scope of employment. A nursing facility can also be held accountable for negligent hiring if a background check would have uncovered warning signs. Negligent supervision can be applied if there were indicators that a particular offender had come forward that were ignored. Liability on grounds of negligent retention can exist when dangerous personnel are not terminated even when management has a copy of the said employee’s criminal records.
If the individual abuser is no longer there, or can’t be identified with certainty, or simply has no real personal assets to speak of, a nursing home abuse case can still push through.
Usually the money comes from the facility’s general liability insurance, not from the individual employee. One of the early steps is figuring out everyone who might actually be liable, including management companies and corporate owners. These parties may sometimes be separate from the operating entity.
Gather evidence before it is lost
Evidence of nursing home abuse tends to have a pretty short shelf life. At most places, surveillance footage is kept for about 30 to 90 days before it is automatically overwritten. An attorney can send over a preservation letter telling everyone to secure the evidence. Keep in mind that such action only really helps if it is done quickly enough to actually matter. Upon suspecting abuse, medical records documenting injuries or health deterioration should be acquired as soon as possible rather than waiting for the filing of a formal complaint by an aggrieved person.
Images of clear wounds, marked with their respective dates and correct time stamps, provide relevant proof during physical abuse lawsuits. Descriptions in written form are more persuasive and reliable than the recollections of people. These pieces of evidence can support or dispute the claims of each party involved. When it comes to cross-examination, these pieces of proof are challenging to contest. The collected evidence must help build a clear timeline that supports the causation angle on the claim in a straightforward way.
Interested parties should review the public regulatory records early in the process. For example, the CMS Nursing Home Care Compare website provides information on all inspection results, deficiency citations, and complaints filed for each Medicare and Medicaid facility. Prior issues tied to resident rights, abuse prevention, or staffing are directly relevant to whether the facility’s failures were just isolated episodes or more like a consistent pattern, something systematic going on.
File regulatory complaints in parallel
Civil lawsuit and a regulatory complaint are different matters that can run parallel to each other.
It is encouraged for families to notify authorities such as the state long-term care ombudsman, the state’s department of health licensing and certification, and the applicable Adult Protective Services when they suspect abuse. These departments have authority to look into records of nursing home facilities. They can also grant penalties and sanctions. The files obtained and investigated during their inquiry into abuse allegations can serve as important evidence in civil matters.
In some states, mandatory reporting is often legally imposed, meaning that facility staff is required to report any potential acts of abuse. The facility’s negligent failure to issue the requisite notice is a legitimate indication of wrongdoing. Non-reporting could also provide evidence to support a claim of cover-up damages.
Know the legal elements the claim must establish
To be successful in a civil case against a nursing home for abuse or neglect, the victims have to establish certain things like duty, breach, causation, and damages.
The nursing home owes the duty of care to the resident once an admission agreement is signed. This duty runs alongside the usual federal and state regulatory standards. The breach happened when the facility, or its employees, didn’t meet that required standard of care. Causation links the breach to the exact harm the victim suffered. Damages refer to the measurable fallout, like medical costs for treatment of injuries tied to abuse and pain and suffering. If conduct was really egregious or deliberate, punitive damages can be applied. This type of damage is meant to punish the facility and prevent future occurrences of a similar kind from happening again.
Cognitive impairment among victims can make credibility more complicated but it doesn’t wipe out the claim. About half of nursing home residents have dementia or serious cognitive deficits. Defence attorneys often go after how dependable resident testimony is and argue that the residents’ statements cannot be trusted. For this reason, it is important to have solid documentary and physical evidence. In some situations, video recordings help too, since they’re allowed in most states with the right consent.
Act within the statute of limitations
Every state has its statute of limitations for personal injury claims, which is usually set at two or three years starting from the date of the injury or from when it was discovered. A few states and cases that involve government-operated facilities have shorter statutes of limitations. Some jurisdictions also demand a notice of claim before anything can be filed. When the deadline is missed, the claim is gone. A case that has solid evidence will not be accepted in court if the applicable statute of limitation has already expired.
Since time is critical for both evidence preservation and filing deadlines, families who think nursing home abuse might have happened should talk to an attorney sooner rather than later. In most situations, an early consult doesn’t cost anything and it helps confirm whether the opportunity window is still open.
Robert Haynes, a psychology graduate from the University of Hertfordshire, has a keen interest in the fields of mental health, wellness, and lifestyle.
