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Although most long-term care facilities offer the elderly adequate protection and care, there are some facilities and care-takers that have not implemented adequate safety procedures, have poorly trained staff, or have an inadequate number of staff to care for their patients. Unfortunately, these factors can lead to neglect and elderly abuse.
Abuse, injury, and neglect can also occur at a higher rate in a long-term care facility because elderly patients are isolated, and they may fear retaliation from the staff if they report the abuse. Many elderly patients also do not have close family or friends to look after them or they suffer from increased deteriorating mental or physical conditions which make it difficult to confront intentional or neglect actions.
Abuse or neglect of an elderly person can be unintentional, intentional, or criminal. Unintentional actions can include a failure to follow specific regulations, maintain appropriate licensing, or failing to maintain the safety of the long-term care facility. Although these failures must be addressed, they may not result in the criminal prosecution or specific injury of an elderly patient.
Injuries to the elderly can also be intentional or criminal. These actions can include failure to provide adequate food, water, or shelter. Or it can also include physical abuse such as slapping, hitting, pinching, or punching a patient. All physical abuse is considered criminal, and the offender could face criminal prosecution.
Finally, abuse can also be negligent. Negligence may or may not rise to a criminal offense, but it can still cause injury or loss to a patient. It also may be a one-time occurrence which causes injury, such as failing to assist a patient to the bathroom, resulting in a fall and serious head injury.
The type and severity of the abuse will determine whether there is a civil or criminal case, and whether the institution is investigated by the police or by an adult protective services agency. As with other types of cases, a civil claim may, under certain conditions, be filed even if criminal charges are not.
If you have had a loved one injured due to the negligent or intentional actions of a healthcare worker in a nursing home you may be legally allowed to file a civil injury claim and recover damages.
As mentioned above, negligence may or may not be considered criminal, and the perpetrator does not have to be convicted of a crime to win civil damages. For instance, you may be able to receive compensation for injury if you can prove the following:
Consider, however, not all injuries at a long-term care facility are caused by the negligence of an employee. In fact, given the mental and physical conditions of the elderly patients, in some cases the employees may have done everything correctly and an injury still occurred. If the injury was due to the negligent actions of an employee and the injury could have been prevented if proper standards were followed, you may have an injury claim.
So what do you need to do to prove your nursing home injury claim? First, you must prove the nursing home or their staff breached their duty of care towards the patient. A breach of duty can be proven by providing evidence that the facility or medical worker did not follow the common practices, treatments, or procedures in a given situation.
Breach of duty for certain medical procedures may require testimony from expert medical witnesses. In some cases, however, the claimant may be able to refer to specific statutes or regulations enacted by the state or federal government and prove the facility did not follow the minimum standard of care.
Next, you must prove that the breach was the proximate cause of the injury. Specifically, if the breach had not occurred, the injury would not have occurred. Given the complicated medical conditions and preexisting health conditions of many of the patients it can be difficult to prove that it was a breach which caused an injury rather than the general unhealthy condition of a patient. If you have questions about proving causation it is a good idea to discuss your case with a personal injury lawyer.
Finally, you must prove the patient suffered an actual injury. For example, if a nurse at the nursing home did not use proper protocol and safety measures to transport a patient and the patient fell, you may be able to prove the nurse had a duty of care and this breach of duty caused the accident. If, however, the patient does not suffer any loss or injury (even if there is a breach of duty) there is not a personal injury claim. There must be some type of loss or injury to file and win an elderly abuse claim.
State laws for compensation vary. In some states if a plaintiff contributes to their own accident they may not be allowed to receive compensation; other states allocate damages according to fault.
Nursing homes can use common defenses and may argue the patient's actions, not the negligence of the facility or medical worker, caused the injury. Whether or not contributory negligence arguments are valid will depend on state law and the facts of a specific case.
Unlike other types of medical care services, if you have placed a loved one in a nursing home, you have probably signed a contract. In the contract the long-term care facility has outlined specific services they are going to provide to the patient.
If you believe the standard level of care has not been met or the facility failed to provide reasonable and necessary services, such as adequate food, water, ambulatory care or cleanliness, you may be able to sue them for breach of contract.
If you suspect any neglect or abuse is criminal you should contact the police immediately. Recently there has been an increase in prosecution of criminal conduct against certain long-term facilities. If, however, the actions are unintentional, you may not have a strong criminal case against the facility. This does not mean, however, that your loved one may not be entitled to compensation for their injuries. If you can prove the elements of your personal injury case (duty, breach of duty, causation, and injury) you may be able to file a personal injury lawsuit.
Due to the complexity of nursing home abuse laws and state laws regarding injury and compensation, it is generally a good idea to discuss your case with a personal injury lawyer.