Frequently Asked Questions
NANHA Medical Questions
What is nursing home abuse and neglect?
Nursing Home abuse and neglect comes in many different forms and are defined under both Federal and State Rules and Regulations.
Federal Rule 42 CFR § 483.5 define “Abuse” and Neglect as follows:
Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress
Who regulates nursing homes?
Nursing Homes and Skilled Nursing Facilities are regulated on both a Federal level and State Level. The Federal Government issues rules and regulations to which Nursing Homes and Skilled Nursing Facilities must adhere. The United States Department of Health Human Services (DHHS) and the Center for Medicare and Medicaid Services (CMS) issues guidelines that conditions the payment of monies for services as part of the compliance or enforcement of the Federal Rules. However, DHHS and CMS interpretive guidelines are often used by State agencies to monitor and compel compliance with the Federal Rules and Regulations.
Additionally, individual States may grant residents and their designative representatives rights to sue for money damages for injuries arising out of the abuse and/or neglect at the hands of the Nursing Home and Skilled Nursing Facility Staff. For example, New York has enacted Public Health Law § 2801-d which provides, among things, residents the right to bring a lawsuit against the facility for injuries sustained by the resident as a result of the deprivation of right or benefit that the resident is entitled to receive. This statutory claim provides for compensation for a resident’s injuries as well as the potential to recover punitive damages and legal fees.
What happens when a nursing home violates regulations?
Nursing home facilities also referred to as skilled nursing facilities are required by law to follow federal regulations housed in the Omnibus Budget Reconciliation Act (OBRA) of 1987. The “OBRA”, also referred to as the “Nursing Home Reform Act”, defines specific standards of care for nursing homes. This federal statute directs long term care and skilled nursing facilities to “provide services and activities to attain or maintain the highest practicable physical, mental, and psychological well-being of each resident in accordance with a written plan of care.” If a long-term care facility participates in Medicare/Medicaid, the facility must comply with applicable federal regulations.
When a resident in a nursing home facility is injured because of the negligence of staff, management, or ownership, the injured resident might be entitled to compensation. Long-term care facilities can also be held liable for substandard care, abuse, or other violations of federal law that result in harm to residents. Some states impose even more stringent regulations for nursing homes that accept Medicare-Medicaid. You should contact an experienced nursing home attorney to find out what other sanctions can be imposed on nursing homes which violate federal and local state regulations.
Are nursing homes required to have specific numbers of staff?
The staffing requirements of Nursing Homes and/or Skilled Nursing Facilities are subject the rules and regulations imposed by the States. Some States require a minimum number of nursing staff and nurse’s aides based upon the number of residents in a particular unit or based upon the acuities or activities of daily living requirements of the residents of a particular unit. Some States do not place a number of staff needed for a particular unit but simply require that the facility provide sufficient qualified staff to provide for the needs of the facilities’ residents.
Are bed sores preventable?
As a general rule bed sores, also referred to as pressure ulcers and decubitus ulcers. Wounds delineated as bed sores, pressure ulcers or decubitus ulcers are generally caused by one or more of a combination of factors. According to The United States Department of Health Human Services (DHHS) and the Center for Medicare and Medicaid Services (CMS) a pressure ulcer is only considered unavoidable when the caregiver can establish that it has implemented all of the appropriate measures based upon complete and proper assessments and that changes in care, treatment, and services were implemented when the original care, treatment and services did not work.
The problem with the discussion of avoidable bed sores is that many times the caregiver will look at the wounds when they devolve to Stage IV or contain significant necrotic tissue, and then look at the resident’s co-morbidities such as diabetes, immobility, incontinence, peripheral vascular disease, renal issues and/or nutrition and conclude that the wounds were unavoidable. An individual who has multiple co-morbidities will have a tougher time healing wounds that have progressed to Stage IV or have significant necrotic tissue and once they get to that point because the body can no longer heal. The problems is how did it get to this point. Had the interventions, care and treatment been properly and consistently implemented, the bed sore would not have devolved to the point where the body can no longer heal itself based upon the resident’s co-morbidities.
What are the ‘stages’ of bed sores?
Bed sores also known as pressure sores, develop when a person has to lie or sit in one position too long and weight of their body against the surface of the bed or chair cuts off blood supply. A nursing home resident might get them if they are left in bed or their wheelchair for extended periods of time.
The stages are based on how deep the sores are, which can affect their treatment. If found and treated early, there’s a good chance these sores will heal in a few days, with complication. Without treatment, the sore is likely to get worse.
- Stage 1 sores are not open wounds. The skin may be painful, but it has no breaks or tears. The skin appears reddened and does not blanch (lose color briefly when you press your finger on it then remove your finger). In a dark-skinned person, the area may appear to be a different color than the surrounding skin, but it may not look red. Skin temperature is often warmer. And the stage 1 sore can feel either firmer or softer than the area around it.
- At stage 2, the skin breaks open, wears away, or forms an ulcer, which is usually tender and painful. The sore expands into deeper layers of the skin. It can look like a scrape (abrasion), blister, or a shallow crater in the skin. Sometimes this stage looks like a blister filled with clear fluid. At this stage, some skin may be damaged beyond repair or may die.
- During stage 3, the sore gets worse and extends into the tissue beneath the skin, forming a small crater. Fat may show in the sore, but not muscle, tendon, or bone.
- At stage 4, the pressure sore is very deep, reaching into muscle and bone and causing extensive damage. Damage to deeper tissues, tendons, and joints may occur.
- In stages 3 and 4 there may be little or no pain due to significant tissue damage. Serious complications, such as infection of the bone (osteomyelitis) or blood (sepsis), can occur if pressure sores progress.
What if a resident with dementia or Alzheimer’s is being abused?
Nursing home residents who suffer from dementia and/ or Alzheimer’s are more likely to become victims of abuse and neglect than other nursing home residents. Unfortunately, there are many instances wherein reports of abuse or neglect may go unreported due to the victim’s inability to effectively communicate. It is important that family members of a resident suffering from dementia or Alzheimer’s visit their lived one on a regular basis so as to observe and monitor the resident’s care. Frequent visitation will also allow you to assess changes in health, mood and behavior that may be signals of abuse and/ or neglect.
Can physical or chemical restraints be used on a patient?
Pursuant to 42 CFR 483.12(a)(2), the Nursing Home or Skilled Nursing Facility shall ensure that the resident is free from physical or chemical restraints imposed for purposes of discipline or convenience and that are not required to treat the resident’s medical symptoms. When the use of restraints is indicated, the facility must use the least restrictive alternative for the least amount of time and document ongoing re-evaluation of the need for restraints.
How do I get a copy of the medical records?
Federal Rules require that the facility grant access to inspect and get copies of medical records and personal records pertaining to the resident. 42 CFR 483.10(g). Each State also has rules governing the production of medical records. In New York, the rules allow for residents and their designated representatives to get their medical records provided that the request is submitted with a proper Authorization.
What are the rights of a visitor who is injured at a nursing home?
Generally, the rights of the visitor are governed by the State law where the action occurred. In New York, they are governed by the common law negligence rules to provide safe environment.
What is a nursing home ombudsman and how can they help me?
A person who investigates complaints, reports findings, and mediates fair settlements, especially between an individual consumer and an institution or organization. A certified Long-Term Care Ombudsman is a professionally trained and certified advocate who resolves issues with long-term care facilities on behalf of residents and their families.
Below are common concerns ombudsmen help with.
- Poor Quality of Care
- Violation of Residents Rights
- Quality of Life (Including food and physical)
- Improper Transfer or Discharge from Facility
- Understaffed Caregivers
- Unreasonable Confinement to Room
- Unanswered Requests for Assistance
- Finance Issues with Facility
- Lack of Respect from Staff
- Suspected Abuse
- Improper Administration of Medication
- Inappropriate use of Restraints (overuse of sedatives, anti-psychotic drugs or physical restraint)
*If you have already made contact with the Ombudsman but feel as though you are not getting the assistance you need, you should reach out to an experienced nursing home attorney to get the assistance you and your loved one deserve.
How do I get my loved one out of the nursing home?
The answer to this question depends on the reasoning behind wanting to move your loved one, your loved one’s physical and mental status, whether or not doing so would be against medical advice, whether there is a plan in place for your loved one’s placement following the move etc. Because each situation is different, it is a good idea to contact an experienced nursing home attorney about your or a loved one’s situation as soon as possible.
NANHA Legal Questions
Are there legal ramifications for acts of abuse or neglect in a nursing home?
Nursing Homes and Skilled Nursing Facilities are subject to various types of consequences as a result of their abuse or neglect. Staff who commit such abuse may subject to discipline by the State regulatory authority and the facility maybe fined or subject other disciplinary measures as determined by each State.
Furthermore, the Nursing Home and/or Skilled Nursing Facility may be held accountable in a civil action commenced by or on behalf of the resident of such facility.
What should I do if I suspect that my loved one is being abused in a nursing home?
If you suspect that your loved one is the victim of abuse you should take immediate action to get them help. You should also talk to your loved one directly or to the supervisor or medical director at the nursing home facility in which they reside. If your loved one is in immediate danger, you should call the police. It is important that the abuse be reported as soon as possible so as to prevent any further harm to your loved one.
When should my family contact a nursing home abuse attorney?
There is no right or wrong answer to this question. If you believe that your loved one has been a victim of neglect or abuse you should reach out to a nursing home attorney immediately.
How long do I have to initiate a lawsuit against a nursing home for a patient injury?
Every state has laws that limit how much time a person has to file a lawsuit. Depending on the type of lawsuit, the limitation period will be different. The deadline for filing a lawsuit is called a “statute of limitation,” and once this deadline has passed to file a lawsuit, it may be too late to seek compensation for injuries.
Every state in the United States has its own statutes of limitations, and they vary depending on the type of claim and the damages involved. New York’s statute of limitations for nursing home cases is generally three years, which means you must file your complaint within three (3) years of the negligent act. If the case involves a death, the complaint must be filed within two (2) years of the date of death. That said, it is not always clear when time started running because nursing home cases involve long periods of care and might entail several acts of negligence. This is one of the reasons you need to work with an experienced nursing home lawyer for your case.
The relevant statutes of limitations for a negligence claim, the most likely theory of law under which a claim for nursing home abuse or neglect will be filed, in each state are as follows:
1 Year Limitation:
Kentucky, Louisiana, Tennessee
2 Year Limitation:
Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Minnesota, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, West Virginia
3 Year Limitation:
Arkansas, District of Columbia, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, New Mexico, New York, North Carolina, Rhode Island, South Carolina, South Dakota, Vermont, Washington, Wisconsin
4 Year Limitation:
Florida, Nebraska, Utah, Wyoming
5 Year Limitation:
6 Year Limitation:
Maine, North Dakota
***If your claim involves a death, you should contact an experienced nursing home attorney immediately, as the time period to file a wrongful death claim may be considerably shorter than your state’s statute of limitations for negligence claims.
What should I take to a meeting with a nursing home abuse lawyer?
If you have a meeting with an attorney regarding Nursing Home Abuse/Neglect you should bring: (1) all the medical records you have regarding the resident; (2) if you are the designated representative of the resident, you should bring all document that you believe grant you the authority to act on behalf of the resident; i.e., power of attorney, order granting guardianship or such other document that the State within which you live recognizes as granting you authority to act on behalf of the resident; (3) photographs of the injury(ies) and any other document or photograph that you believes bears on the case you want to have investigated.
How long does it take to settle a nursing home injury claim?
This is a difficult question as there are so many variables which may bear on the ability to commence an action or resolve the same. First, the person who has retained the attorney must have the authority to retain the attorney for the purpose of investigating a potential claim and investigating a claim. He must be able to give the attorney the right to obtain the medical records from the nursing home and all other relevant medical providers. If the person does not have the authority, we must then determine if such authority can be obtained without judicial intervention. If such authority can be obtained, the resident still maintains sufficient mental capacity to convey such authority, then it could take up three months to get the relevant medical records (maybe more depending on the facility). Once all of the records are obtained, the records should be reviewed by the handling attorney. If the handling attorney believes that there is a case, the next step is to determine if the person who retained you has the authority to commence the action on behalf of the resident (many times the resident has passed away or has advanced dementia). Once the attorney is able to obtain authority to commence the action and has obtained an expert report regarding the claim, the action will be commenced. Then, depending on the type of claim (fall, bed sore, infections) and the number of facilities involved, and the venue in which the case is to be tried, it could take between 1 and 3 years to place your case on the trial calendar. The time it takes to make it through the trial calendar is up to the time constraints imposed by the Judge or the County controlling the calendar.
Are there caps on nursing home negligence lawsuits?
A damages cap is a limitation placed by law on the amount of non- economic damages that may be awarded for a case. Whether or not a cap is in effect and the amount of that cap varies by state. You should contact an experienced nursing home attorney to determine whether a cap is in place in your state.
What is a contingency fee?
A contingency fee is paid by a client to a lawyer only if the lawyer handles a case successfully. Lawyers and clients use this arrangement only in cases where money is being claimed—most often in cases involving personal injury or workers’ compensation.
In a contingent fee arrangement, the lawyer agrees to accept a fixed percentage (often one-third) of the recovery, which is the amount finally paid to the client. If you win the case, the lawyer’s fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money, but you will not be required to pay your attorney for the work done on the case. American Bar Association
What is an advance directive and should I have one?
An advance directive is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. A living will is one form of advance directive, leaving instructions for treatment. Another form is a specific type of power of attorney or health care proxy, in which the person authorizes someone (an agent) to make decisions on their behalf when they are incapacitated.
Everyone should consider doing a health care proxy because the person you designate will be able to make judgments based on the most current situation and information. Naming a proxy early will help you prepare for the unexpected.
*A living will is one way to communicate your values and beliefs, but the language used in standard living wills is usually too narrow to be useful in many common medical situations.
Is Medicare entitled to a portion of recovery from a nursing home negligence lawsuit?
The short answer is yes. Medicare, has a right of recovery of all monies paid for medical care related to the care and treatment of injuries caused by a third-party.
What is the surviving spouse entitled to from a nursing home wrongful death lawsuit?
A wrongful death claim is usually filed by the representatives of a deceased person’s estate. If the decedent had a spouse to whom he or she was legally married at the time of death, the spouse usually has the highest right to pursue to wrongful death claim. If a wrongful death claim is favorably resolved, the proceeds from the claim will be distributed in accordance to statute or will. Generally, a surviving spouse is entitled to take from the proceeds of a wrongful death on behalf of his or her spouse resulting from nursing home neglect and abuse. Each situation is different and depends upon the state. You should call a local nursing home attorney to discuss your specific situation.
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