Q: When a resident of a nursing home is without contract with the facility, can he/she file lawsuit against the nursing home for improper care?

A: Yes, the nursing home residents, or even their survivors, who are harmed as a result of improper care by the nursing home may recover damages under different legal theories, even if there is the absence of contract. The resident may have a cause of action that comes up as a result of negligent personal supervision and care, negligent hiring and retention of the employees, negligent maintenance of the area, or negligent selection or maintenance of equipment. Furthermore, the nursing home resident who experiences abuse can file lawsuit and pursue damages for assault and battery.

Q: What are the rights of the nursing home residents?

A: The resident in a nursing home who is a member of the Medicare program has the right, under the statute, to be free from verbal physical, mental, and sexual abuse, and any physical or chemical restraint enforced for discipline or comfort, instead of treating medical condition. The limitations may be applied upon the written order of the doctor who specifies the length of time and circumstances under which the restraints are to be used, but to make sure that the safety of the resident and other residents are exercised. When the nursing home is not regulated by the federal statute, the residents of the nursing homes will still have the rights under the state laws, which may differ from one state to another state.

Q: What will happen when the nursing home resident complains of neglect or abuse?

A: Nowadays, all the states have systems for reporting the allegations of abuse, neglect, and exploitation of the elder people. Investigation includes interviews with the resident, his/her family, and nursing home staff and management. When the allegations are established, the adult protective services will offer services to the concerned older individual to try to remedy the problem and avoid the problems to occur again. However, there may be certain situations or conditions where the victims or the family of the victim are not happy with the compensated injury against the unpleasant situation experienced at the hands of the nursing home facility. It is strongly recommended, then, to find and contact a lawyer who is experienced in nursing home cases, who will explain and discuss about the appropriate civil action for damages against the nursing home. Additionally, the circumstances may merit a criminal prosecution.

Q: What qualifies as “neglect” in the nursing home environment?

A: Most of the states describe neglect of elderly people as the failure to give them the services vital to health and safety like food, shelter, clothing, supervision, and medical care. Whether these failures are intentional or not, or if they are just reckless acts, will determine if the case against the nursing home can be pursued as neglect or abuse.

Q: Does the guest to a nursing home, instead of being a resident, have any rights against the nursing home if he/she is injured while staying at the nursing home?

A: Yes, if somebody is injured during his/her stay in a nursing home can file a civil claim against the nursing home under the law of “premises liability.” This law addresses the injuries received while on the premises owned and/or maintained by others as an outcome of harmful and/or unsafe condition around that property. The injured elderly person can proceed under the negligence theory, asserting that certain negligence, whether they are in the maintenance of the premises or in hiring their employees, resulted to his/her injury.

Q: Why are the neglect and abuse common in the nursing home facilities?

A: There are several factors that contribute to the abuse or neglect of the nursing home residents, which include poor qualified and insufficient training of the employees; employees with history of violence; lack of employees; isolation of the residents; and the known fear of the residents to report abuse.

Q: How can the acts of abuse or neglect by the nursing home are handled in legal proceedings?

A: The act of abuse, neglect, or exploitation of the elderly person can result to any of the following proceedings:

1. Investigation and finding by an adult protective services agency;
2. Civil cause of action for damages or lawsuit; and/or
3. Criminal prosecution

These proceedings have their own objectives where protective services investigation aims at giving immediate assistance and relief to the victim and avoid further harm. Civil action intends to remedy damages while criminal prosecution is intended to punish the harmful act.

Q: What comprises the “exploitation” in the nursing home environment?

A: Several states describe exploitation as wrongful application of the resources of the elderly person for profit or advantage. Some describes it as the misuse of the funds and property of the elderly person. Other states define as exploitation, or resources are obtained without the consent of the elderly person, or from undue influence, deception, false pretenses, or duress.