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Nursing Home Abuse and Negligence
Many elderly adults later in life turn to nursing home facilities as a primary means for their care. The National center on Elder Abuse has estimated that one nursing home patient out of 20 has been the victim of negligence or injury during their residency. Unfortunately, most negligence cases at nursing homes go unreported or even unknown to an elderly person’s loved ones.
Nursing home neglect is one of the most common types of elder abuse. It can be difficult to prove that a nursing home is guilty of negligence due to the fact of mental deterioration and a lack of ability from the victim to communicate their negligence. Sadly many nursing homes often do not have the staff or the funds to properly take care of their residents. While it is hard to tell if a nursing home is the responsible party for an elderly patients decline it can be a factor. There are several common signs that an elderly resident is the victim of nursing home abuse or neglect. A victim may have unexplained injuries, bedsores, they may be in frequent arguments with a caregiver, there may be significant weight loss or a caregiver may refuse to let family members visit an elderly person alone.
There are both federal and North Carolina state laws to protect the elderly against abuse and neglect. Federal law has a list of nursing home requirements that must be met. These include:
- The right to be treated with dignity and respect;
- The right to have written information regarding services and fees before admission;
- The right to personal privacy and the use of personal belongings as long as it does not endanger others;
- The right to control medical care and to choose doctors;
- The right to be free from physical and mental abuse;
- The right to handle financial affairs; and
- The right not to be discharged from the facility except for their own or other's welfare or non-payment
North Carolina has its own Bill of Right for Nursing Home Residents posted as shown below.
NORTH CAROLINA BILL OF RIGHTS FOR NURSING HOME RESIDENTS (condensed version) EVERY RESIDENT SHALL HAVE THE FOLLOWING RIGHTS: 1. To be treated with consideration, respect and full recognition of personal dignity and individuality. 2. To receive care, treatment, and services that are adequate and appropriate, and in compliance with relevant federal and State rules. 3. To receive at the time of admission and during stay, a written statement of services provided by the facility and of related charges. Charges for services not covered under Medicare and Medicaid shall be specified. 4. To have on file physician’s orders with proposed schedule of medical treatment. Written, signed evidence of prior informed consent to participation in experimental research shall be in patient’s file. 5. To receive respect and privacy in his medical care program. All personal and medical records are confidential. 6. To be free of mental and physical abuse. To be free of chemical and physical restraint unless authorized for a specified period of time by a physician according to clear and indicated medical need. 7. To receive from the administrator or staff of the facility a reasonable response to all requests. 8. To receive visitors or have access to privacy in phone use at any reasonable hour. To send and receive mail promptly and unopened, with access to writing materials. 9. To manage his/her own financial affairs unless other legal arrangements have been so ordered. 10.To have privacy in visits by the patient’s spouse. 11.To enjoy privacy in his/her own room. 12.To present grievances and recommend changes in policies and services without fear of reprisal, restraint, interference, coercion or discrimination. 13.To not be required to perform services for the facility without personal consent and written approval of the attending physician. 14.To retain, to secure storage for, and to use his personal clothing and possessions, where reasonable. 15.To not be transferred or discharged from a facility except for medical, financial, or their own or other patient’s welfare. Any such transfer shall require at least five days’ notice, unless the attending physician orders immediate transfer, which shall be documented in the patient’s medical record. 16.To be notified when the facility’s license is revoked or made provisional. The responsible party or guardian must be notified, also
This is in place to make sure that nursing home residents have their rights protected. Even with all of these laws for safe care of the elderly in place in place injuries still, do happen as a result of negligence. If these laws are not followed and an injury is suffered a plaintiff must determine who is liable.
Sometimes it can be difficult to determine who is responsible for the injuries to the nursing home resident. Many times employees are not actually employed by the nursing home. For example, many of the doctors who oversee the care of the residents is an independent contractor. In many cases the physical or occupational therapists are independent contactors. The nursing home can generally be held responsible if they for negligently hiring, training, supervising, or failing to fire certain staff. Also, the nursing home needs to provide security, daily necessities of living, protect from health hazards.
The nursing home as an organization will be held liable if one of their employees’ negligence caused an injury to a resident. Nurses are required to met medical standards of care. If it can be shown that the medical care provided by the nursing staff failed to meet the standard of care the nursing home will be held responsible.
In trial, the plaintiff will have the burden of proof in a nursing home negligence case. The plaintiff will typically have to prove that the nursing home owed a duty of care to the resident and that the duty of care was breached. The breach will have to be the direct result of any damages that the victim has suffered.
The damages that are typically found in an elder abuse case are pain and suffering, emotional distress, and the costs of any medical treatments. Injuries are usually proved by looking at medical history as it relates to the complaint at hand. Any time an injury occurs in a nursing home it is standard practice that an injury report is filed. This can be used as evidence in the case, with some limitations. It is important for the resident or family member to document every incident themselves. Ideally, the plaintiff will be able to show photographs, documents, notes and eyewitness testimony regarding the conduct and injuries. If a plaintiff is able to prove that the nursing home or the nursing home was the direct cause of their damages then they will be able to recover those damages in court.
If you or a loved one was injured by the negligence of a nursing home please contact us at (704) 714-1450. You will speak directly with an attorney who can explain your rights and options. There is no fee to speak with a lawyer.
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