Nursing homes are an integral part of our society. They provide care for individuals who cannot care for themselves in their own homes, but who do not need the level of care that a hospital provides.
Nursing homes provide a variety of care to its residents including medical, personal, physical therapy, occupational therapy and speech therapy. Nursing homes provide those who cannot remain in their homes with a place to live and eat. It provides them with social activities and help with personal care, including bathing, attending to personal hygiene, using the bathroom, and getting dressed. Nursing homes provide individuals with caregivers who are available 24 hours a day in case of emergencies. They have aides and nurses on staff who can administer medicine and monitor those with conditions such as Alzheimer’s who may need to be watched 24 hours a day.
It is estimated that more than 1.3 million individuals reside in nursing homes in the United States. While nursing homes provide care to individuals at varying levels, the majority of their residents are elderly or disabled. Of course, in any situation where personal and medical care is being given things can go wrong; especially in a situation where the majority of residents are either elderly or disabled and therefore tend to be more frail, both physically and medically.
When a resident is injured at a nursing home, there could be no claim, or there could be an ordinary negligence claim or a medical malpractice claim. The standards for these two claims are different.
Ordinary Negligence Claims
Not all claims rise to the level of medical malpractice. When mistakes are made that cause harm, then an ordinary negligence claim might exist. The standard for an ordinary negligence claim is lower than that of a medical malpractice claim. In order to prove negligence on the part of a nursing home, a party will have to show that:
- the nursing home had a duty to act, or not act;
- the nursing home breached that duty;
- the breach caused injury; and
- the nursing home should have foreseen that the resident would be harmed by the nursing home’s action, or failure to act.
Medical malpractice occurs when a medical professional or a healthcare facility acts negligently and causes harm to its patients. Nursing homes are considered medical facilities and are subject to medical malpractice claims. So are the doctors and nurses who staff nursing homes.
In order to prove medical practice, the following elements must be proven:
1. a relationship with the patient. In the case of a doctor, there must be a doctor-patient relationship. A doctor who is not treating a patient and makes an off-the- cuff comment that the patient should be taking a certain medication or supplement will not be found to have a doctor-patient relationship and therefore not be subject to a medical malpractice claim. In the case of a nursing home, there must be a healthcare facility-patient relationship, which exists as long as the patient is a resident of the nursing home;
2. a duty of care. Nursing homes and doctors have a duty of care to their patients. They have a duty to provide a reasonable standard of care. In the case of a nursing home, the duty is to first comply with all state and federal regulations governing nursing homes and second, to provide residents with reasonable care, or the care that a reasonable healthcare facility would provide under the same circumstances;
3. a breach of the duty of care. This element requires showing that the nursing home, or a doctor, did not act as a reasonable provider would under similar circumstances. For example, if a resident developed an extremely high fever and a doctor or nursing home did not treat the fever or send the resident to the hospital, there could be a breach of the duty of care;
4. the breach caused harm, or damages. There can be no medical malpractice claim if there is no harm. Using the fever example above, if the resident was not treated for a fever but suffered no harm, there is no medical malpractice. If the resident suffered serious side effects, then there might be a viable medical malpractice claim.
In North Carolina, claims alleging medical malpractice have a heightened pleading standard. In order to allege medical malpractice in North Carolina, a plaintiff will need to have an expert witness review the medical records and opine that the medical care given did not meet the applicable standard of care.
Nursing Home Errors That Could Lead to a Medical Malpractice Claim
While not everything that goes wrong at a nursing home will rise to the level of medical malpractice, there are times when nursing home errors are more likely to rise to the level of medical malpractice. These include:
- failing to monitor a resident’s vitals, particularly those who suffer from conditions such as high blood pressure and diabetes;
- failing to act if a resident’s vitals are outside of the normal range;
- failing to give medications, giving medications at the wrong time, giving the wrong dose, or mixing up medications;
- failing to send a resident to the hospital or calling an ambulance when a resident is in distress;
- failing to properly train staff;
- failing to provide proper care;
- allowing an aide to treat a resident when the situation calls for treatment by a licensed nurse or doctor;
- not having policies and procedures in place to care for residents;
- failing to comply with state and/or federal regulations; and
- not having an adequate number of staff for the number of patients in a facility.
Discuss Your Nursing Home Injury with Our Charlotte Attorneys
If you, or a loved one was injured while living in a nursing home, you should speak to an attorney to determine if there is any liability. The Charlotte NC based lawyers at Rosensteel Fleishman, PLLC are experienced medical malpractice attorneys who can help. Please contact our office at 704-714-1450. There is no fee for an initial consultation