This is an image of an elderly woman in a wheelchair.Nursing home injuries may also be a form of premises liability. Sadly, as people age, they become more vulnerable to abuse, neglect, and exploitation. Some people opt to move into nursing homes or long-term care facilities to insure that they are well cared for and protected from the effects of deteriorating physical and/or mental conditions. In these settings, however, older people are sometimes physically or psychologically harmed by neglect or intentional acts by their caregivers.

In institutional settings, several factors have been shown to contribute to abuse and neglect of nursing home residents; including poorly qualified or inadequately trained staff, staff with a history of violence, inadequate staffing, the isolation of residents, and the known reluctance of residents to report abuse out of embarrassment or fear.

For all of these reasons, it is a challenge to represent elderly people in personal injury actions. Specifically, these cases present the challenge of overcoming the tendency on the part of others, including insurance adjusters and even physicians, to discount an elderly person’s injuries and the diminished quality of life that results from them. With an effective investigation and an effective presentation of losses by the attorney of the injured elderly person, however, insurance adjusters and jurors can be convinced to compensate the injured senior citizen.

Nursing homes can be held responsible for these injuries under various theories, such as negligence, abuse, false imprisonment, and violations of criminal statutes as well as violations of regulations pertaining to the licensing, maintenance, and general operation of the nursing home. An act of abuse, negligence, or exploitation of an elderly person might give rise to one of the following types of proceedings:

Types of Proceedings

  1. An investigation proceeding by Adult Protection Service Agency
  2. A civil cause of action for damages and/or
  3. Criminal prosecution.

These three types of proceedings have different objectives. The objective of the protective services investigation is to provide immediate help and relief to the victim and to further prevent harm. The civil action is to address damages and the criminal prosecution is to punish the harmful conduct. The liability of the nursing home owner or employees can result from negligent maintenance of the premises, negligent personal supervision and care, negligent hiring and retention of employees, and negligent selection and maintenance of equipment.

Other common law theories of recovery in addition to negligence may be pursued as well. For example, a nursing home resident who has been abused can pursue damages for assault and battery. Despite what many people believe, an assault does not necessarily mean a physical attack of any kind; an assault is commonly defined as a threat of force with the apparent ability to carry out such threat. Similarly, a battery need not consist of a beating or severe physical attack; any intentional, harmful or offensive contact by another might be considered a battery.

Probably the most common theory of recovery against a nursing home is negligence.

A nursing home, or its owner or proprietor, can be held liable for negligence if the injured party can prove:

  1. That the nursing home’s owner or employees breached a duty of care owed to the injured person,
  2. That the person’s injury was caused by this breach, and
  3. The nursing home owner’s or employee’s conduct caused that injury.

While these elements apply equally to the negligence action brought by nursing home visitors and residents alike, the following focuses on issues that arise out of negligent actions brought by residents.

A plaintiff suing a nursing home may need to offer expert medical testimony about what is or is not proper practice, treatment, or procedure in a given situation; unless the lack of care or skill by the nursing home is so apparent that the average person would comprehend it based upon his or her common knowledge and experience. Expert testimony may be needed to establish a standard of professional care which was violated by the defendant’s conduct.

When the injured resident does not know exactly what caused his or her injury, he may invoke the legal doctrine of res ipsa loquitur, which places the burden on the nursing home to show that it was not negligent. In order for a plaintiff to successfully invoke this doctrine, he or she must show:

  1. Evidence of the actual cause of the injury is not obtainable.
  2. The injury is not the kind that ordinarily occurs in the absence of negligence by someone.
  3. The person was not responsible for his or her own injury.
  4. The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury.
  5. The injury could not have been caused by any instrumentality other than that which the defendant had control.

The fact that a resident’s injury may have been made worse or harder to treat because of a pre-existing physical or mental condition does not relieve the defendant from liability.

The nursing home owes a duty of ordinary care in keeping its premises safe. The administrator of the home who is responsible for the general administration of the facility may be held liable for his or her failure to ensure that proper services are provided to the patients.

Nursing homes are entitled to insert defenses such as contributory negligence of the injured party and assumption of the known risks.

When your future is at stake, contact Mooney & Associates, Attorneys at Law. The attorney you choose does make a difference.