If you are reading this, it’s likely you suspect or know that your loved one has been harmed while in a nursing home. You are considering your options and trying to decide whether you should take legal action. In this Complete Guide to Nursing Home Abuse and Negligence, we will cover:
- Basics of Medical Malpractice Laws in Alabama,
- Nursing Home Regulations,
- Common Types of Nursing Home Abuse Injuries,
- Common Types of Nursing Home Neglect Injuries,
- The Steps We Take in Pursuing a Nursing Home Case, and
- How Nursing Home Abuse and Neglect Attorneys are Paid
Nursing home abuse and nursing home negligence are common problems in our healthcare industry. It is suspected that there are in excess of 5 million instances of elder abuse every year in America. According to the World Health Organization’s report, 15.7% of people aged 60 years or older are subjected to some form of abuse.
Much of elder abuse occurs in nursing homes where the patients’ family members cannot notice the abuse that is occurring. Studies have shown that more than 40% of nursing home residents have reported abuse.
Abuse in nursing homes isn’t the only issue. Abuse means that there is purposeful harm occurring to a patient. Nursing home neglect is much more common. Neglect is the failure to use reasonable care to ensure a nursing home patient receives proper medical treatment. More than 90% of nursing home residents report that they have witnessed nursing home neglect.
The root cause for nursing home neglect is that nursing homes are underfunded and understaffed, both of which lead to preventable medical errors that cause severe injury, preventable medical complications, or death. The corporations that own nursing homes reduce staffing levels in order to reduce their highest expense – the payroll of the nursing staff. In other words, the nursing home corporations are putting profit over patient safety.
In this guide, we will walk through the legal principles involved in pursuing a nursing home abuse or nursing home negligence lawsuit. We will also cover the common types of injuries and nursing home errors we see. We have a strong track record of winning cases against nursing homes and are here to share what we know. Read on to find out what our nursing home lawyers have to say about these types of cases:
I. Basics of Medical Malpractice Laws in Alabama
Any claim against an Alabama nursing home, whether for abuse or neglect, is governed by the Alabama Medical Liability Act (AMLA). The AMLA was drafted and passed in order to protect healthcare providers, including nursing homes. In short, the AMLA is one of the toughest pieces of law in all of America in regards to preventing patients from being able to successfully sue a healthcare provider such as a nursing home.
Only 9% of cases filed against healthcare providers in Alabama are won by the patient (or the patient’s family if the patient is deceased). However, that percentage is much higher when the defendant is an Alabama nursing home. The reason for this will become apparent as you read the rest of this guide.
To prevail in a medical malpractice case against a nursing home, you must prove through expert witness testimony that (1) the nursing home failed to meet the standard of care for skilling nursing facilities and (2) that the failure to meet the standard of care caused the patient harm. In order to be qualified to testify that the nursing home failed to meet the standard of care, the expert must be actively working in a nursing home setting at the time of the incident. We have a network of nursing home expert witnesses who review cases for us and testify when needed.
II. Nursing Home Regulations
Nursing homes are governed by both federal and state regulations. On the federal level, if nursing homes accept Medicare or Medicaid as payment (which almost all do), then the nursing homes are required to abide by 42 CFR part 483, which is part of an extensive bill passed by Congress in 1989 called the Omnibus Budget Reconciliation Act (OBRA). See the full regulations at https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483
The regulations are too extensive to outline in this guide, but they generally impose duties on nursing homes to take adequate measures to ensure patient health and safety. Some of the most important parts of these regulations include that the nursing home must create a plan of care to address the patient’s medical issues, develop interventions to meet the plan of care, and assign a sufficient number of nursing staff to care for patients, among numerous other requirements.
When we pursue a nursing home abuse or negligence case, we are always trying to gather evidence to show that the nursing home failed to abide by these federal regulations. Evidence that the nursing home failed to follow the regulations can be used to prove that the nursing home breached the standard of care.
There are also Alabama state regulations that apply to nursing homes. However, these state regulations are quite vague. In practice, state regulations impose little burden on nursing homes.
III. Common Types of Nursing Home Abuse Injuries
The federal regulations governing nursing homes define “abuse” as:
“… the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish…” 42 CFR 483.5
The most common situations of nursing home abuse we see involve disgruntled, overworked nursing staff. Taking care of patients with dementia and other significant health conditions can be stressful. Add in the fact that nursing homes understaff their facilities, and you have a recipe for disaster. It’s sad, but unfortunately not shocking, that many nursing home employees take out their frustration on an easy target – your loved one.
Common nursing home abuse injuries include anything from bruising to a traumatic brain injury. In one case we handled, an angry nursing aide fractured our client’s arm when our client asked for another pillow. Other nursing home abuse injuries we have handled include sexual abuse. These are probably the most disturbing types of cases we have handled, but sadly, sex abuse of the elderly does occur.
If you think your loved one is being abused by nursing home staff, please reach out and let us review the case.
IV. Common Types of Nursing Home Neglect Injuries
By far the most common nursing home neglect injury we see is a pressure ulcer. The pressure ulcer has various names, including a decubitus ulcer, a pressure injury, or a bedsore. Pressure ulcers usually develop when a patient does not receive adequate nutrition and is not properly repositioned in their bed.
When the pressure of being in the same position in a nursing home bed for too long builds up, skin breakdown occurs. This occurs especially in instances where the patient’s protein intake is insufficient. Adequate protein is necessary for healthy skin.
The most common area for a pressure ulcer is around the tailbone. When a nursing home patient is left in the same position in a nursing home bed for more than two hours, gravity builds pressure on the area around the tailbone. A large ulcer or bedsore will eventually develop and will tunnel down into the patient’s buttocks. This is called a sacral pressure ulcer.
Once it has tunneled, not only does the skin die, but muscle and tissue will die. Usually, the ulcer will get infected and can lead to osteomyelitis, which can be deadly if not treated quickly. These types of injuries are usually easily preventable, but occur all too often due to nursing home negligence.
Other common types of nursing home negligence injuries include broken hips, broken arms, broken femurs, and head injuries from preventable falls. Nursing homes have a responsibility to develop fall-risk precautions. Nursing homes rarely implement fall risk precautions and this can lead elderly patients to get out of bed on their own and fall.
We also see a fair amount of nursing home negligence cases involving severe dehydration. It is sad that nursing homes cannot ensure that patients get something as basic as water. Severe dehydration can lead to death or other health complications if intravenous fluids are not administered immediately.
V. The Steps We Take in Pursuing a Nursing Home Case
The first step is determining whether there is evidence sufficient to support a claim under the AMLA. We have to gather all of the relevant medical records, summarize them, and have a nursing home expert witness review them to determine whether there was a breach of the standard of care. If so, we go to the next step.
The next step is determining who is the proper party to bring the lawsuit. If the nursing patient has died due to abuse or neglect, then an estate must be established. In Alabama, only the personal representative of the deceased’s estate has the capacity to bring a wrongful death lawsuit against a nursing home.
If the nursing home patient is still alive and is mentally competent, then the patient must agree to bring the lawsuit. If the nursing home patient is alive but is not mentally competent, then the lawsuit can be brought by the patient’s guardian. If there is no guardian, then the lawsuit can be brought by what the law calls a “next friend.” The next friend is usually a family member who acts on behalf of the nursing home patient.
The next step is filing a lawsuit. Once a lawsuit is filed, many times, the nursing home’s attorneys will file a “motion to stay” the lawsuit pending arbitration. In many instances, you or your loved one signed an arbitration agreement with the nursing home. If the arbitration agreement is valid, then the case will be decided by an arbitrator. If we successfully contend that the arbitration agreement is unenforceable due to a lack of competency or another legal argument we set forth, then we have a right to proceed in court with the lawsuit.
Regardless of whether the case remains pending in the court system or is moved to the arbitration process, the next step is exchanging information with the nursing home’s attorneys. We engage in a legal process called “discovery,” where both sides get to ask the opposing side written questions (called interrogatories.) Both sides also get to request documents from the opposing side. In addition, both parties have the right to take depositions, which is nothing more than under oath testimony of witnesses.
Many times, after this “discovery” process is complete, we can reach a settlement of the case at what’s called mediation. Mediation is a voluntary, confidential process where both parties agree to hire a neutral third party to try to reach a settlement. The mediator is usually a respected, older attorney or a retired judge. If the case does not settle, then we proceed to trial or an arbitration hearing.
VI. How are Nursing Home Abuse and Negligence Attorneys Paid?
Attorneys handling nursing home injury and wrongful death cases are paid on a contingency fee basis. This means that the attorney is paid only if there is a settlement or verdict in your favor. Our firm typically charges a 40-45% contingency fee for nursing home abuse and negligence cases, depending on the facts of the case and the complexity of the legal issues involved.
If there is no settlement and you lose your case at trial or arbitration, the attorney does not get paid. The attorney will not send you a bill for their time or the costs incurred. Long story short, there is no financial risk to you by having a nursing home attorney review your case.
VII. Let Us Review Your Nursing Home Case
We hope this guide to nursing home abuse has answered some of your questions. If you think your loved one has been harmed or killed by a nursing home, contact our nursing home abuse and neglect lawyers.
We have expertise in this area of the law and have successfully handled hundreds of nursing home injury and death cases. We know this is a difficult time, and we want to do everything we can to ensure that what occurred to your loved one never happens again.