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Nursing Home Law and Litigation

The "graying of America" has given senior citizens a large and powerful political voice. As a result, crimes against the elderly, particularly those involving abuse or neglect, are coming to the attention of the general public and our nation's elected policy makers. Nursing homes have been defined as private institutions that furnish shelter, food and care for sick, aged, or infirm persons. They may be considered hospitals for certain purposes. Nursing home residents are protected by both state and federal regulations.

There are many reasons cited for this epidemic of physical abuse in nursing homes. The National Center on Elder Abuse says that the hiring of poorly trained and underpaid workers, together with rampant understaffing, is partly to blame for nursing home abuse.

Physical abuse in a nursing home is especially heinous because it targets vulnerable people and deprives them of their sense of security in their final years. If someone you love been subjected to physical abuse in a nursing home your loved one may be entitled to compensation.

Statutory Protection of Nursing Home Residents
Some of the abuse brought to light includes: physical abuse, deprivation of food, water or medical care and residents being taken advantage of financially. When the widespread nature of this abuse and neglect became known, state and federal legislatures enacted laws to protect elderly persons and other nursing home residents.

There are federal and state laws to protect residents against abuse, neglect and exploitation. Adult Protective Services may investigate reported abuse. Generally, abuse or neglect is considered a criminal offense and there is often a civil cause of action for abuse, neglect or exploitation of nursing home residents. Consumer protection statutes may provide a statutory duty of care for residents of a nursing or care facility. If you are a nursing home resident who has been mistreated, or if you care about such an individual, do not hesitate to contact The Law offices of Attorney Mary Markovich, PA to pursue appropriate legal action

Negligence in the Nursing Home Setting

A nursing home is generally a facility that provides shelter, food and care for the sick, elderly or infirm. Different terms are used in case law to describe a nursing home facility, such as: rest home, hold age home, convalescent home, special care facility, assisted living facility or retirement facility.

Nursing homes are often thought of as facilities for the elderly, generally, an elder is someone 65 years of age or older. However, residents may be a person of any age who is dependent either mentally or physically for care. Although these care facilities provide health care by trained professionals, they are not hospitals and may have different requirements for care, according to state and federal law. A common state or federal requirement is that nursing homes must provide a general standard of care based on what similar caregivers and facilities provide in the community. Facilities that do not meet this general standard of care may be liable for violation of state and federal negligence laws. If you or a loved one has been harmed while a nursing home resident, contact an attorney for advice about protecting your legal rights and seeking recompense for injury.

Standard of Care, Negligence Per Se, Ordinary Negligence
Legally, a nursing home or healthcare facility must exercise reasonable care to avoid injury to a patient’s physical and mental state. Such a facility has special knowledge of resident ailments and must respond accordingly to prevent further harm. If reasonable care or prevention is not given, a facility may be held liable. Additionally, a nursing home may be held liable for injuries caused by the negligence of it’s employees. This includes negligence acts of an employee, negligence supervision of employees, negligent hiring, employee retention and maintenance of facilities and equipment. If there has been an injury due to negligence, residents and/or their families may have a claim against the care facility for institutional elder abuse. If community minimum care standards are not met, there may be a claim for negligence.

To have a claim for ordinary negligence, four situations must be present:

1. the nursing home must have a duty to the resident. This duty is usually a written contract
2. the nursing home has breached it’s duty by either breaching the contract or breaching the reasonable standard of care
3. the facility’s breach has caused the resident's injury;
4. the resident suffered damages, such as pain and suffering, additional health care expenses, and so forth.

Legal Rights of Nursing Home Residents under Federal Law
The rights of nursing home patients are protected under the federal law known as the Nursing Home Reform Act (NHRA). The NHRA, is codified at 42 U.S.C. §§1395i-3 and 1396r. The law requires nursing homes to promote and protect the rights of each resident and places a strong emphasis on individual dignity and self-determination. Nursing homes must meet residents' rights requirements to participate in the Medicare and Medicaid programs.

The rights set forth in the NHRA requires a nursing home to "develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents...." the use of restraints for the purposes of discipline or convenience are forbidden. Physical and other abuses, corporal punishment and involuntary seclusion are forbidden. Nursing homes are required to provide "[a] safe, clean, comfortable, and homelike environment..." Each nursing must home provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care which . . . is initially prepared, with participation to the extent practicable of the resident, the resident's family, or legal representative.

In general, the NHRA and regulations provide the following rights to residents of nursing homes:

1. Rights to Self-Determination
2. Personal and Privacy Rights
3. Rights to Be Free of Abuse and Restraints
4. Rights to Information
5. Rights to Visits
6. Transfer and Discharge Rights
7. Protection of Personal Funds
8. Protection Against Medicaid Discrimination

A resident in a nursing facility is entitled to receive written notice of the rights and services to which he or she is entitled during his/her stay in the facility. This notice must be give prior to or upon admission, and periodically throughout the resident's stay, in a language the resident understands. The resident must acknowledge his or her receipt of such notice in writing.

Title XX of the Social Security Act compels states to fund protective services for adults. Adult protective Services (APS) were created to protect nursing home residents from abuse, neglect and exploitation by facility staff members or other individuals. By creating APS, states are in compliance with Title XX and able to receive federal funding for state run care facilities. In 1978, the passing of Title XX also lead to Congress directing all states to establish a Long-Term Care Ombudsman program. The Long-Term Care program provides individuals in nursing or care facilities with protection against neglect and abuse. Likewise, The Older Americans Act creates federal programs designed to identify, prevent and address elder or nursing home resident abuse.

NC Residents' Rights
The North Carolina rights of residents of nursing homes and adult care homes are acknowledged and protected by State law. The Division’s Ombudsman Program has provided a condensed version of North Carolina’s Adult Care Home Bill of Rights and North Carolina’s Bill of Rights for Nursing Home Residents. The Ombudsman Program assists residents and families in the understanding and exercise of these rights.

Abuse
Abuse of individuals may be physical or emotional. Abuse is generally defined as actions that cause emotional or psychological injury or distress. Actions may include hitting, pushing, verbally insulting a resident, causing emotional pain or fear, or in some states, isolation or unreasonable confinement or restraint. The types of abuse and causes of such abuse differs. The courts may look to the affect of such actions to determine whether a resident was abused in violation of state law.

Neglect
Neglect as the failure to provide a nursing home or long-term care resident with basic services necessary for health and safety. These services include food, shelter, clothing, supervision and medical care. Deprivation of these basic necessities may harm individuals as much as if they were physically or intentionally harmed. Although such harm may be unintentional or careless, failure to provide basic services may endanger the health and safety of residents and is neglect.

Exploitation
Generally, for exploitation to occur, a resident’s personal or financial resources are taken without consent, either through undue influence, duress, threats, intimidation, deception or because the individual is incapacitated or unable to give consent.

Signs of financial irregularities may include sudden changes in bank account or banking practices; abrupt changes in a will or other financial documents, the unexplained disappearance of funds or valuable possessions, unpaid bills despite adequate funds, the provision of unnecessary services, the discovery of forged signatures, a lack of care despite the availability of resources, or an elder's report of financial exploitation.

Consumer Protection Statutes
Nursing home facilities owe residents a statutory duty of care. Failure to provide proper, reasonable care and treatment by a care facility is a violation of care, which arises from the nursing home owing a resident a standard of care generally given by similar facilities in the same area. This general standard of care is the level of care considered reasonable for the patient’s mental and physical circumstances and should keep them from unreasonable risk and harm. Likewise, a care facility may have a professional standard of care due to the resident. Nursing home or long-term care facilities/homes must use a degree of care, skill and standard of practice that are used by similar professionals and facilities in the community.

If you or a loved one in a nursing home has been neglected, abused , or financially exploited, do not hesitate to