There are circumstances where a nursing home should be sued for a resident or patient injury.
Although no one really wants to sue a nursing home, convalescent home, rest home, assisted care facility or elder care facility because it is in fact a place of good intentions and the provider of care primarily to the elderly. However, there are times when the very same facilities should be held legally responsible for their negligent, careless and/or abusive conduct. For example, a personal injury or medical malpractice lawsuit should be filed when: 1] an act of negligence, 2] neglect, or 3] abuse on the premises causes injury to a resident or patient.
What Kind Of Action and/or Failure To Act Should Lead To the Filing Of A Lawsuit?
There are numerous accidents, willful and intentional acts, and failures to act that may leave a nursing home or other health care facility legally responsible, either based on the conduct of an employee or on a policy, procedure or on-going practice at the facility. Here are a few examples:
- Failure to keep the premises reasonably safe and free of hazardsa] dangers the facility and its staff are aware of, and those dangers or they should be aware of through proper attentiveness). This includes everything from preventing slip and fall accidents to preventing one resident from attacking another resident. * Here is an example- leaving a cleaning cart full of chemicals unlocked, uncovered and/or unattended for patients/residents to either drink the chemicals, or throw the containers/chemicals at another patient/resident.
- Negligent hiring, and/or negligent training and/or negligent supervision of an employee who ends up neglecting, abusing, or otherwise intentionally harming a patient. *Here is an example- not properly screening prospective employees who subsequently either steal from patients/residents or commit sexual acts upon the patients/residents and have a records of prior criminal acts elsewhere.
- Negligent supervisionof residents who fall and injure themselves. *Here is an example- Patient/resident is given a “Risk Assessment” during the admission process. It was determined the patient/resident is a high risk for falls. Notwithstanding the preceding, patient/resident is admitted and the facility did absolutely nothing to protect the patient/resident from falls. Patient/resident falls and breaks her hip and arm.
- Failure to maintain adequate health and safety policies including such policies as keeping clean and sanitary conditions in resident rooms and in common areas such dining halls, resident club-house areas.
- Failure to provide adequate medical treatmentthat meets the medical standard of care under the circumstances. When the provision of sub-standard medical care causes harm to a resident, there may be a case for medical malpractice against the nursing home facility and/or against a medical professional who treated the resident.
There Are Regulations On The Standard of Care in addition to State of California Statutory Scheme: In addition to state laws, if a nursing home accepts Medicare, the facility must follow Federal Regulations that establish the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides:
- The resident environment remains as free of accident hazards as possible; and
- Each resident receives adequate supervision and assistance devices to prevent accidents.
If the nursing home fails to comply with these regulations and a resident is injured, the nursing home is liable to be sued.
An Example Of Regulatory Noncompliance
- What must a facility do to comply with this regulation? The facility had several residents, who had fallen many times.
- One resident had Parkinson’s disease, long-term memory deficits, anxiety, periods of altered perception and restlessness. The facility had implemented several interventions including a low bed with mats, a body alarm, adjustment of medications, a lap buddy in his wheelchair, providing therapy to assist in sitting in the wheelchair, use of a geri-chair, walking with assistance of a therapist, toileting the resident on regular intervals, and placing the resident near the nurses work station. But the resident continued to fall. The court ruled that all these implementations were not enough and that the facility should provide continuous supervision when the resident was out of bed. The Judge found that leaving the resident unwatched, for even a short period of time, was an invitation for the resident to fall. In more simple words, “………..do not admit patient/residents if you cannot protect them………”
- Other residents fell because they disabled wheelchair alarms, body alarms were not working, would not use a walker, etc. The court found that more supervision must be affordedthese residents and that the facility violation of the regulation caused the residents to sustain serious injuries. Again in more simpler words……” don’t accept patient/residents……if you can’t take care of them………”
Proving Liability Can Be Complicated
When a resident is injured at a care facility, it is not always obvious what exactly went wrong, and who might be legally responsible. The evidence available is often incomplete and/or medical records may be self-serving for the nursing home. Examples such as medical record pages either “disappearing” and then re-numbered or being re-written to camouflage negligent conduct or overt abuse. In cases like these, your best first step would be discussing the situation with an experienced attorney like Morton J. Grabel, a former Nursing Home Administrator and Hospital Administrator.
Please note: the information provided above is general and should not be relied upon for your particular circumstance or case.
