At some point in our lives, we may have parents or grandparents who are no longer capable of caring for themselves. For many of us, it is not practical for them to live with us, so we look to nursing homes and assisted living facilities to provide our seniors a safe and caring environment. An entire industry is devoted to caring for the elderly who need assistance in hygiene, nutrition, medical care and companionship with other seniors.
While a number of these facilities are well-maintained and administered, too many are understaffed, are unsupervised, or have ill-trained or incompetent personnel. As a result, the elderly residents suffer from abuse and neglect. If you have a loved one whom you suspect is a victim of nursing home negligence, contact
an Austin attorney at Byrd Davis Alden & Henrichson, LLP
, to discuss your situation.
How Prevalent Is Nursing Home Negligence?
Nursing homes are heavily regulated by federal and state laws. These regulations include standards that must be met such as staffing numbers, health and safety requirements.
According to a number of studies, over 90 percent of nursing homes are understaffed, meaning that not every resident’s needs can be timely provided for, if at all, and many residents are left on their own during much of the day. Other statistics are more alarming, with 33 percent of nursing home facilities in America having been cited for abuse or other related infractions.
Texas facilities are no exception, with at least 30 percent having been cited. Further, there are about 12,000 complaints of nursing home abuses reported in Texas annually, though many go unreported for a variety of reasons. Also, inspections of Texas nursing homes have revealed that 94 percent did not meet the U.S. Department of Health and Human Services recommended staffing levels.
Almost one-fourth of staff cited or prosecuted for elder abuse have criminal records. Elder abuse crimes in Texas are treated as felonies, but this has obviously not prompted nursing home facilities to tighten its screening and hiring practices.
What Is Nursing Home Negligence?
A nursing home has a duty to provide adequate medical and other care to residents. Their standard of care is set forth in federal and state statutes. Nursing home negligence is also any act or omission by the facility or its employees in which a resident is not provided a safe and clean living environment or their physical and mental health needs are not met. This includes physical abuse such as hitting or slapping a resident, sexual assault, lack of medical care and inappropriate methods of restraint.
Examples Of Nursing Home Negligence
There are numerous examples of nursing home negligence or abuse, including the following:
Improper Administration Of Medication
Incompetent or overwhelmed staff often overmedicate or undermedicate residents. Some staff are unable to read or decipher directions, opt to keep the drugs for themselves or place false entries in the resident’s record.
Most complaints of nursing home negligence unfortunately involve instances of physical neglect and outright physical harm. These include signs of bedsores, broken limbs, dehydration, bruises from being hit or from restraints, head injuries, drug overdoses, malnutrition and poor hygiene.
Frustrated staff may lash out at residents who refuse to eat or take their medications due to dementia or other mental difficulties. Many injuries result from falls sustained from being too tightly restrained, dropped or from the lack of bedrails.
Sadly, sexual assault or injuries from inappropriate contact is not uncommon. Signs are bruising in the genital and abdominal area, venereal disease and torn clothing.
If you notice that your loved one is constantly depressed, listless, aggressive, is apprehensive around staff or does not want to engage in activities, these could be signs of serious neglect and abuse. Verbal abuse of other residents, teasing in a cruel manner or insulting residents is mental abuse and possibly indicative of other types of abuse or neglect.
Unclean Facilities And Rooms
If you notice that the facility is unclean, has foul odors, soiled bedding, and residents are wandering around unattended to or dressed inadequately, it is a sign of serious neglect throughout the facility.
Understaffing is the most common infraction and complaint. Without enough staff, not every resident’s needs and care can be provided for and the opportunity to cut corners and to hire incompetent personnel who are more likely to abuse residents increases. Other issues of understaffing include:
- Misuse and poor training of nursing aides
- Lack of staff supervision
- History of mistreatment of residents
- Insufficient staff at certain hours of operation
- Inadequate cleaning of the facility leading to the spread of infections and disease
Other issues of abandonment, exploitation and inattention to particular resident needs are more prevalent when the staff is poorly trained, not monitored and overworked.
The Omnibus Budget And Reconciliation Act Of 1987 (OBRA)
All residents in nursing homes have certain rights that are protected by federal legislation as embodied in the Omnibus Budget and Reconciliation Act of 1987. Your loved one has the following rights:
- Freedom from abuse, mistreatment and neglect
- Freedom from physical restraints
- Right of privacy
- Right to accommodation of medical, physical, mental and social needs
- To be treated with dignity
- To communicate freely
- To exercise self-determination
- To participate in the review of their care plan and to be informed in advance of changes in care, treatment or change in status of the facility
- To voice grievances without reprisal
Also, residents must be given a care plan and have access to nursing, pharmaceutical and social services.
Though OBRA allows the U.S. Department of Health and Senior Services to bring legal action against a facility for violations of federal standards, you can also bring a private right of action.
The Legal Rights Of A Nursing Home Resident
Nursing homes are private institutions that provide shelter, food and care for the sick, aged or weak. They are not characterized as hospitals, in which no medical treatment is actually given — however, in some aspects they do appear as such.
The federal law classifies nursing homes into four categories:
- Adult boarding facilities
- Residential care facilities
- Intermediate care facilities
- Skilled nursing facilities
Depending on the category, the standards that apply differ. Under federal law, the facility must create a comprehensive policy that will prohibit neglect, abuse and maltreatment of residents. Nursing home residents should receive both written and verbal notices of the services he or she is entitled to, as well as his or her rights in the facility. These notices should be given before the resident is admitted, and regularly during his or her stay, in language that he or she will understand.
Here are some of the rights that a nursing home resident has, which he or she should acknowledge in writing. A nursing resident has the right to:
- See their family, resident advocates as well as service providers, doctors and medical professionals, as well as representatives of the federal and state government
- Keep and use their own, personal possessions unless it endangers his or her safety
- Apply for, be eligible to, and receive medical benefits. Furthermore, they cannot be ordered to leave home because of such benefits
- Be treated fairly, regardless if he or she is receiving medical benefits
- Have his or her records treated with utmost confidentiality
- See and know the list of services that are shouldered by their medical benefit, as well as additional charges that may apply
- Select their personal doctor or physician
- Fully know their medical care
- Be part of the planning process for their treatment and care
- Refuse treatment
- Be free from physical and mental abuse
- Stay or be apart from other residents when implemented against their will
- Not be restrained or tied down if it is unnecessary to have the medical condition or symptoms treated
- Bring up grievances and complaints to have them quickly resolved
- Participate in activities so long as it does not interfere with the rights and privileges of other residents
- Not be required to or forced to place their personal funds in the nursing home
- Keep their privacy — in their rooms, treatment, visits, as well as meetings with family and other visitors
- Review their records within 24 hours upon request
- Read the review of the most recent inspection results of the nursing home
- Be informed before being moved rooms, or having a change of roommate
- Stay at the nursing home unless it is dangerous for his or her welfare, or if it can be determined that the services of the nursing home are no longer needed
These are only a few of the rights that a nursing home resident has. If your loved one’s rights are violated and he or she is injured because of it, let us know here
at Byrd Davis Alden & Henrichson, LLP
, so we can determine the best course of action so you can recover damages for your loved one. Our Austin nursing home abuse lawyers
want to help.
Common Types Of Nursing Home Abuse
The decision to place your loved one in a nursing home can be a difficult one to come. When you place your loved one in a nursing home, you expect that they will be properly cared for and looked after. You would never willingly place them in the care of someone else if you thought they would be in danger. Unfortunately, nursing home abuse is not uncommon. Even more unfortunately, most of the time it is difficult to detect. If you believe that an elderly person is being abused, neglected, or preyed upon you must take immediate action. The most common types of nursing home abuse
are listed below.
1. Physical Abuse
Inflicting physical force in the form of slapping, punching, shaking, or pushing is considered physical abuse. When a nursing home staff member intentionally uses physical force to harm an elderly person, they are guilty of physical abuse. It is quite easy to detect physical abuse in nursing homes. Bruises and cuts are often an indication of physical abuse. Do not ignore any bruising, cuts or lacerations you notice on your loved one. Sometimes old age and ailing health make it difficult for elderly people to speak up about abuse. Because of this, it is often difficult to trace the source of these injuries by simply asking your elderly family member. Investigate by asking nursing staff the source of the injuries. If their answers are unsatisfactory, it is recommended that you seek legal counsel.
2. Emotional Abuse
Emotional abuse is behavior through words or actions that causes emotional distress. Verbally intimidating or humiliating elderly persons are a common type of emotional abuse present in nursing homes. Working in nursing homes can be a difficult job, especially if staff members deal with stubborn or volatile elderly persons. However, yelling or terrorizing elderly members to force them to comply with orders is unacceptable. Verbal abuse can be seen in more passive-aggressive ways. Isolating elderly people and preventing them from participating in activities is emotional abuse. Ignoring the physical needs or requests of nursing home members are also considered emotional abuse.
3. Sexual Abuse
Sexual abuse in nursing homes is quite common. Some elderly people feel powerless and unable to speak out if they have been sexually assaulted. Engaging in sexual acts without the consent of an elderly person is considered sexual abuse. Showing pornographic images or forcing elderly people to undress are also considered sexual abuse.
Out of all the different forms of abuse, nursing home neglect is the most common. Failure to feed, change soiled sheets, bathe or perform other duties is considered neglect. Elderly people are often placed in nursing homes because they are no longer able to fully care for themselves. They depend on nursing staff to fulfill their needs and requests. Whether done accidentally or intentionally, ignoring the needs of nursing home members is neglect.
Nursing Home Negligence Litigation
If you suspect abuse or negligence, you should take the following steps to try to remedy the situation or to be prepared in anticipation of litigation:
- Ask for explanations from a staff supervisor or director.
- Meet with a local ombudsman to make inquiries.
- Take detailed notes of your observations of the home and your loved one, including discussions with identified staff members and their responses.
- Have your loved one examined by your own physician.
- Report your complaint to the Department of Disability and Aging Services.
- Make a complaint to Adult Protective Services.
What is more important is to seek consultation from one of our nursing home negligence attorneys at Byrd Davis Alden & Henrichson, LLP
. Our law firm will review the nursing home’s documents, including the nursing home’s chart and the resident’s entire medical history from a number of sources, which may include numerous hospitalizations. Other vital records include incident reports, nursing notes, doctor’s orders, care plans, and intake and outtake records. The family physician may also provide the preadmission medical status of the resident that may be compared with the resident’s health after admission or removal from the facility.
Interviewing family members about the resident’s health, habits and mental status is also essential. In some cases, finding and interviewing former employees of the facility can offer insight on policies and procedures at the facility. Once the records and witness testimony are obtained, an expert in nursing home care may be retained to render an opinion on whether the practices of the home fell below the accepted standard of care. You can recover medical expenses, pain and suffering, and punitive damages in many instances. If a professional malpractice claim is brought, your noneconomic damages may be limited.
Austin Nursing Home Abuse Attorneys
The attorneys at Byrd Davis Alden & Henrichson, LLP
, have over 50 years of experience in obtaining justice and compensation for our injured clients. We are committed to helping you recover the maximum compensation to which you are entitled under the law. When someone else’s negligence has caused personal injury or the death of someone you love, call our law offices at 512-593-7650
for a no-cost, no-obligation consultation.