When to File a Lawsuit Against a Nursing Home for Abuse
A civil lawsuit can compensate you for nursing home neglect
on October 31, 2022
Residents of nursing home facilities who are victims of abuse or neglect can take legal action against the nursing home for their mistreatment.
While criminal charges are brought by the state and aim to punish the perpetrator of a crime, civil lawsuits aim to give financial compensation to victims of injuries or other harm.
- Economic losses, including medical bills
- Non-economic losses, including pain and suffering
It’s worth noting that you don’t have to file a lawsuit in order to report nursing home abuse. You can report abuse and neglect to law enforcement immediately. You can also request your state’s adult protective services or long-term care ombudsman program to investigate the nursing home.
However, if you are seeking compensation for injuries, “it’s important to get an attorney involved who can communicate with the facility, gather all of the necessary information, help evaluate the claim, and ultimately pursue the claim to recover that compensation,” says Indiana personal injury lawyer Ashley N. Hadler.
To find an experienced lawyer in your area, visit the Super Lawyers directory.
What Is Abuse in a Nursing Home?
Following reports showing widespread nursing home neglect and abuse, Congress passed the Nursing Home Reform Act (NHRA) in 1987.
Under this law, nursing home facilities that receive federal funding under Medicare or Medicaid must meet certain standards of care.
Several states have incorporated the NHRA’s regulations into their state laws, requiring nursing homes to follow them whether or not they receive Medicare or Medicaid reimbursement.
Under the NHRA, abuse is defined as the “willful infliction of injury, unreasonable confinements, intimidation, or punishment with resulting physical harm, pain, or mental anguish.”
While abuse is intentional, neglect can result from carelessness in failing “to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.”
Nursing home abuse can take many forms, including:
- Physical abuse
- Psychological or emotional abuse
- Sexual abuse
- Financial abuse
According to the National Center on Elder Abuse, the most commonly reported types of abuse are psychological and various kinds of physical abuse.
If you have a loved one you suspect is being abused, look for signs of abuse. For example, physical abuse can result in serious injuries, including broken bones, bleeding, pressure ulcers, and bedsores.
Who Can File a Nursing Home Abuse Lawsuit?
To file a lawsuit for nursing home abuse, you must have what’s called “legal standing” to sue. Who has standing? The individual who has been legally harmed.
In other words, the victim of abuse can sue. In most cases, family members of the victim cannot sue on the victim’s behalf since they were not directly harmed.
If a nursing home resident is incapacitated and can’t bring a lawsuit on their own behalf, it’s important to check if the resident has appointed a power of attorney.
A power of attorney is a legal document that appoints and authorizes an individual to make decisions or pursue legal action on behalf of the person if they are incapable of doing so. The power of attorney document is often included in estate planning.
Suppose the incapacitated resident doesn’t have a power of attorney. In that case, a family member will have to seek a court order to appoint a guardian for the resident.
A guardian acts like a power of attorney in taking action on the resident’s behalf. The only difference is that it’s not someone the resident personally appointed—it’s someone appointed by the court.
Who Can Be Sued for Nursing Home Abuse?
Deciding who to sue or name as a defendant is essential in planning a lawsuit.
It will depend on the facts of your abuse case. However, the following parties are often responsible in these cases:
- The nursing home staff member or caregiver who directly caused your injuries
- Nursing home administrators and supervisors
- The company that operates or owns the nursing home
As with all aspects of a nursing home abuse case, it’s wise to speak with an experienced attorney to figure out who to sue. A lawyer will be able to assess the facts and formulate the best strategy.
What Legal Claims Can You Bring for Nursing Home Abuse?
“A civil action to recover monetary damages or a federal action for a rights violation would come into play when the nursing home resident has suffered harm [for which] they should be compensated, but for which they can’t be compensated outside of the legal system.”
Harms include “medical expenses [as well as] pain and suffering and other emotional damages,” says Hadler.
Nursing home abuse cases may involve different legal theories. The most common types of nursing home abuse cases are:
- Nursing home negligence. In a negligence case, you have to prove four elements:
- Duty. The nursing home owed you a duty of care as a resident.
- Breach of duty. The nursing home or staff breached this duty through their actions or omissions.
- Causation. The breach of duty is what caused your injuries (not some unrelated factor).
- Damages. You were actually harmed as a result of the breach of duty. Your damages are the compensation you are seeking through the lawsuit.
- Medical malpractice. Medical malpractice is a type of negligence case. You must establish there was a duty of care in providing medical treatment that the nursing home failed to meet. The standard of care is determined by how other healthcare professionals would have acted in a similar situation.
- Breach of contract. Many nursing home residents enter a contract with the nursing home. The contract terms establish the care and services that residents should receive. If the nursing home fails to provide this care, they have breached the terms of the contract.
- Wrongful death lawsuit. “If the nursing home resident has died as a result of negligence, injury, or any harm, then their family could also look into their legal options to recover for the resident’s injuries, including any pain or suffering that they experienced before they passed,” says Hadler. Family members also have “the potential for a wrongful death cause of action, in which family members would be compensated for their loss of love, care, and affection. Some states also allow compensation for the grief and sorrow of losing the loved one prematurely. So, depending on the state where the facility is located, different family members may be entitled to compensation, and different types of compensation are available.”
In preparing for a lawsuit, you will want to compile evidence of the abuse or neglect. Evidence includes:
- Medical records
- Witnesses, including staff and other residents
- Photos or videos
- Communications, including emails, texts, etc.
- Other documentation or records
When Should You Take Legal Action?
Every state has laws called statutes of limitations that set deadlines on when you can bring a lawsuit for legal injuries.
It’s essential to ensure you are within your state’s statute of limitations. You are barred from bringing legal action if you’ve missed the deadline.
“I think it’s important to know that most lawyers who work in the personal injury realm do work on a contingency fee basis, so there is no cost associated with reaching out to a lawyer to determine what their rights are,” says Hadler.
Additionally, “once you speak to a lawyer who agrees to become involved and you decide to hire them to investigate, a lot of the leg work of obtaining the medical records, incident videos, or other investigation materials becomes the lawyer’s job,” she says.
“So, it’s something that becomes a big benefit to a family or resident—namely, that they can focus on healing from the injury or the death of their loved one while the lawyer takes over the responsibility of investigating and ultimately compensating the family while holding the facility accountable for the harm.”
Pursuing legal action against a nursing home can “also help to protect other current and future residents of the facility” from harm.
Questions for a Nursing Home Abuse Attorney
If you or a loved one is a nursing home resident who has suffered abuse and you are considering suing, speak with a nursing home abuse lawyer as soon as possible.
Many lawyers provide free case reviews for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What are my legal rights as a nursing home resident?
- Do I have a legal case against my long-term care facility?
- What is the legal process for suing a nursing home?
- Are there alternatives to litigation?
- What damages could I get in a lawsuit?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a nursing home attorney in the Super Lawyers directory for legal help as a nursing home resident.