If you or a loved one has been a victim of nursing home abuse and neglect, our Bronx County nursing home lawyer can help. Read our answers to commonly asked questions about nursing home abuse and neglect below, and contact our firm for a free consultation.
Q: What rights are residents of nursing homes/assisted living facilities entitled to?
A: A resident of a facility that participates in Medicare may not be verbally, sexually, physically or mentally abused. A resident of a facility that does not participate in Medicare usually has the same or similar rights under that State’s statutes. A facility does have the right to take certain actions, such as restraints or safety of others, but protocols must be followed.
Q: What is “neglect”?
A: Generally, a failure to provide a resident with that level of service or care that is essential to maintain health and safety. Stated another way, neglect is a “failure to provide goods and services necessary to avoid physical harm, mental, anguish or mental illness”. Examples include a failure to provide proper food, clothing, medication, medical care, lodging and supervision.
Q: What is “abuse”?
A: Generally, abuse occurs when policies and procedures that are in place to provide for the care, treatment, or the like are not followed. It may also be defined as a “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish”.
Q: What is “exploitation”?
A: Simply put, exploitation is the misuse of a resident’s resources; whether personal property or other assets. The wrongful taking or misuse of a resident’s resources for profit or other gain is a type of exploitation. Generally, it is done without the resident’s consent; sometimes it is undue influence, duress, or false pretenses.
Q: Why does neglect and abuse frequently occur?
A: Among the more common reasons this occurs is because staff is not qualified, poorly trained, not supervised, or overworked. Unfortunately, profit motives come into play. Residents are typical vulnerable and either scared to speak out or unable to advocate for themselves.
Q: Are there types of nursing home/assisted living facilities cases:
A: Yes, other examples include falls, wandering (or elopement), transportation accidents, and bed sores (or pressure sores). These types of incidents unfortunately frequently occur. The facility is responsible in these instances.
Q. If I suspect a problem, how to act?
A. Each situation is fact specific. Sometimes a meeting with the appropriate staff member will resolve the issue. Other times you may need to create a record. This includes acting as your own investigator; which may include surveillance, recordings and statements. Sometimes you should report the allegation to the authorities. If you strongly suspect a problem, don’t delay. Contact an attorney who specializes in these matters.
Q: What happens when a resident does speak out?
A: All states have a system when someone wants to make a complaint about abuse, neglect or exploitation. An investigation typically includes interviewing the resident, family members, facility staff and management. If the allegations warrant, there may be a fine, penalty and/or changes made to prevent recurrence. When appropriate, the earlier an attorney who specializes in these matters is contacted the better.
Q: How does the legal process work?
A: An administrative proceeding may result in an investigation that could lead to fines, penalties and changes to try to prevent future occurrences. In some instances criminal charges may be warranted. A civil lawsuit is an effort to obtain appropriate and full monetary compensation for what occurred and to try to set a precedent so that the harm does not occur.
Q: Who may sue?
A: The resident who has been harmed has the legal right to pursue a claim for damages. Sometimes the resident is not physically or mentally able to maintain the suit, or has unfortunately passed. In this occasion, a representative, usually a close family member is appointed by the court to pursue the claim. Damages would still belong to the estate of the deceased resident.
Q: Does a visitor who is injured have legal rights?
A: Yes, general rules of negligence law apply. Basically, negligence is a failure of care. Someone who falls, or is otherwise injured, would have the legal right to pursue a claim for personal injuries.