- Overview of Nursing Home Negligence
- FAQ about Nursing Home Negligence
- Signs of Nursing Home Negligence
- How to Prove a Negligence Claim
Overview of Nursing Home Negligence
What is negligence? Negligence is an area of tort law that creates liability for people that fail to take reasonable care in avoiding injury or loss to another person. Generally, ordinary negligence occurs when someone does not act as a reasonable person would in certain circumstances. To prove a case for negligence, one must show that (1) defendant owed a duty to the plaintiff; (2) that duty was breached; (3) the defendant’s actions (or inactions) caused the plaintiff’s injury; and (4) the plaintiff was actually injured in some way.
Nursing home negligence is basic negligence in the context of a nursing home. The same elements of ordinary negligence must be proved in order to show nursing home negligence (duty, breach, causation, and injury). Typically, a nursing home’s duty of care is to provide residents with a level of reasonable care that protects them and provides them with a safe environment. If they breach this duty and it causes harm, there may be negligence liability.
Negligence in a nursing home can happen in a countless number of ways. Some examples of how a nursing home can be negligent includes, but is not limited to, the following:
- Failing to maintain reasonably safe premises;
- Negligent hiring that results in employees abuse or neglect;
- Negligent supervision of employees;
- Failure to maintain adequate health and safety policies; and/or
- Failure to provide adequate medical treatment.
In a case for ordinary negligence, the plaintiff usually only receives compensatory damages. Compensatory damages are awarded to compensate a plaintiff for their losses. For example, in a personal injury case, there may be compensation for physical pain, suffering, physical impairment, mental anguish, loss wages, and medical expenses. Punitive damages are typically not available for ordinary negligence.
On the other hand, if the case rises to the level of gross negligence a plaintiff can receive compensatory damages and punitive damages. Punitive damages are awarded to punish the defendant for his or her gross negligence.
FAQ about Nursing Home Negligence
What is nursing home negligence?
Nursing home negligence occurs when nursing homes, elder care facilities, assisted living facilities, and the like, breach their duty of reasonable care to their patients, on the premises of the facilities or homes, which causes harm to a patient. The same elements of ordinary negligence apply.
Nursing home negligence usually appears as physical abuse, financial abuse, emotional abuse, or neglect.
How can I prevent placing my loved one in a negligent nursing home?
In order to prevent nursing homes from abusing a loved one, you should be proactive. Consider the following guidelines for assessing a nursing home or assisted living facility:
- Look at state evaluations on the government’s Medicare website.
- Be familiar with state and federal nursing home regulations.
- Talk to the patients, residents, and personnel to see what they say about the facility.
- Stay away from homes that restrict access to the patients.
- Visit as often as possible and don’t announce your visits ahead of time.
How to report nursing home negligence
If you suspect nursing home abuse, it is imperative that you report it immediately. Do not wait to make a report or try to investigate on your own; leave that to the professionals. But you do want the report made as soon as possible so that evidence can be collected. Here are some general guidelines for reporting nursing home abuse.
- First, if the patient is in immediate danger, you shouldn’t wait at all. Instead, call the police or 911 immediately.
- You should also file a report with Adult Protective Services (APS) in your area. This can be found at the National Center on Elder Abuse website or by calling 1-800-677-1116.
- APS will generally take the call and be the “first responder” to investigate. However, they may turn the case over to the police or a state long-term care (LTC) ombudsman.
How much can you sue for nursing home negligence?
This depends on the specifics of your case. In a claim for ordinary negligence, a plaintiff may be awarded compensatory damages. Compensatory damages compensate you for your losses, so the amount of money you get should compensate you for any injuries or harm suffered. This can include any past, present, and future expenses incurred, including medical care, lost earnings, and loss of future earnings.
If the nursing home negligence claim arises to gross negligence, you may be able to receive punitive damages. Gross negligence is like ordinary negligence in that it also projects liability onto those who do not act reasonably. However, gross negligence goes further than ordinary negligence because it only occurs when the person (defendant) acts so unreasonably that it is almost intentional. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care.
Punitive damages are different because it is money paid to the plaintiff by the defendant in order to “punish” the defendant. Punitive damages are not to reward the plaintiff, but to deter the defendant from repeating his or her reckless conduct. However, there are limitations to punitive damages. In Florida, there is a cap on the amount of punitive damages available in a personal injury lawsuit.
Punitive damages may not exceed the greater of:
- Three times the amount of compensatory damages awarded or
- The sum of $500,000. (See the full text of the law here).
Signs of Nursing Home Negligence
If you are worried about a loved one in a nursing home, there are several different physical and mental warning signs you can look for. They include:
- Bed sores (which may be a result of inadequate care)
- Broken bones or fractures
- Bruising, cuts or welts (especially those that may indicate the use of restraints)
- Frequent infections
- Poor physical appearance or lack of cleanliness
- Signs of dehydration
- Changes in mental status
- Mood swings and emotional outbursts
- Reclusiveness, withdrawal, or refusal to speak
- Refusal to eat or take medications
- Unexplained weight loss
- Broken eyeglasses or frames
- Bruises around breasts or genitals
- Unexplained bleeding
- Torn, stained, or bloody underclothing
- Caregivers that do not want patient to be left alone with others
- Frequent arguments or tension between the caregiver and the elderly person
- Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should)
- Unsanitary living conditions
- Unsafe living conditions
- Significant withdrawals from elder’s accounts
- Sudden changes in elder’s financial condition
- Suspicious changes in wills, power of attorney, titles and policies
- Unnecessary services
How to Prove a Negligence Claim
In any tort claim, there are elements that must be proven to the court to establish the defendant’s liability (i.e. tort liability). Negligence falls under the umbrella of tort law. Thus, in order to prove that a defendant was negligent, you must prove all four elements of negligence:
- breach of duty
You must prove all four and not just one or two of the elements.
The first element that must be proven is whether the defendant owed a “duty of care” to the plaintiff. The duty of care is a standard in tort law to act as a reasonable person. This duty of care can be owed by a person or a business. For example, landlords who owe a duty of care to those who come on the property, and business owners who owe a duty of care to those who enter the business, including employees and customers.
Breach of Duty:
The second element that must be proven is that the duty of care was breached by the defendant acting (or failing to act) in a certain way. For instance, if a landlord breaches the duty of care by failing to install handrails on a staircase, then the second element has been met.
The third element, causation, is that the plaintiff must prove that the defendant’s actions (or inaction) caused the plaintiff’s injury. In other words, the defendant must have caused the harm to occur.
Causation splits into two types:
- actual cause
- proximate cause
A plaintiff must establish both types of causation in order to prove the element of causation.
- Actual cause is exactly what it sounds like: did the defendant actually cause the harm? Actual cause is sometimes referred to as cause-in-fact.
- On the other hand, proximate cause is an extremely complex concept. Put simply, proximate cause asks whether the defendant’s actions (or inactions) caused a foreseeable consequence. Proximate cause is sometimes referred to as legal cause.
The final element of proof of negligence is damages. For this element, the plaintiff must show that he or she was injured or suffered damage as a result of the defendant’s actions (or inactions). Damages can be proven by personal injury, property damage, and in some cases, punitive damages.
Dealing with a case of nursing home negligence can be extremely distressing. On top of that, the law of negligence is very complex and can be difficult to understand. Each case has a unique set of facts that make it difficult to determine whether or not you have a solid claim for nursing home negligence. Let us help you make that determination easier.
Think you may have a case? Call us at (954) 951-9583 now!