The liability of a nursing home owner or employees can result from negligent personal supervision and care, negligent hiring and retention of employees, negligent maintenance of the premises, and negligent selection or maintenance of equipment. Other commonlaw 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 may believe, an assault does not necessarily involve a physical attack of any kind; an assault is commonly defined as a threat of force with the apparent ability to carry out the 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 “battery,” depending on the law in your state. Best attorneys are available at https://www.sutliffstout.com/houston-car-accident-lawyer/ to give you the best support.
Probably the most common theory of recovery against nursing homes, however, 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) that the nursing home owner’s or employee’s conduct caused the injury. While these elements apply equally to negligence actions brought by nursing home visitors and residents alike, the following discussion focuses specifically on issues that arise in negligence actions brought by residents.
Proving Duty and Breach of Duty: A plaintiff suing a nursing home may need to offer expert medical testimony about what is or is not a 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 on his or her common knowledge and experience. For instance, if a nursing home administrator is alleged to have failed to exercise care with respect to maintaining the nursing home facility, that issue will likely not require expert testimony, whereas a nurse’s treatment of a patient’s condition might.
Where expert testimony is given, that will help establish the standard of professional care against which the conduct of a defendant nursing home should be measured. This testimony will also help establish that the resident’s injuries were the result of the nursing home’s failure to exercise the appropriate care.
If an injured resident does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of the nursing home, his or her attorney may invoke a legal doctrine known as “res ipsa loquitur,” which places the burden on the nursing home to show that it was not negligent. To invoke this doctrine successfully, a plaintiff has to show that:
- Evidence of the actual cause of the injury is not obtainable;
- The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
- The plaintiff was not responsible for his or her own injury;
- The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
- The injury could not have been caused by any instrumentality other than that over which the defendant had control.
This doctrine might be successfully invoked, for example, in a case where a bedridden resident is injured by the use, or failure of, a medical instrument operated only by nursing home staff, and which does not ordinarily injure patients.
Statutory standard of care: Many states have enacted statutes or regulations that establish certain minimum standards of care for private nursing homes. Even if a nursing home can show it complied with minimum licensing standards, however, it may still be liable for a resident’s injuries. For these reasons, it is important to have an attorney research the applicable standard of care, licensing requirements, and other regulations in your area.
Causation: An issue that comes up frequently in nursing home litigation is whether the resident’s injury was inevitable due to his or her pre-existing poor health, medical complications, mental condition, or advanced age. Defendants often argue that a resident’s pre-existing health condition, and not any negligence on the part of the nursing home, was the true cause of an injury alleged in a lawsuit. But this should not deter a resident who believes a nursing home caused his or her injury; there is a wellestablished rule of law that a defendant (such as a nursing home) takes its victim as it finds him/her, pre-existing conditions and all. Thus, 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 of liability.
Under some statutory schemes, a nursing home is considered a hospital. Some states have statutes that define the rights of nursing home residents, and authorize private causes of action for patients whose rights under the statutes have been violated.
Even without such statutes, a relationship of trust, known in legal terms as a “fiduciary relationship,” exists between a nursing home and its residents. By virtue of this special relationship, nursing home residents are generally considered to be “invitees” of the nursing home, to whom the nursing home owes the duty of exercising ordinary care in keeping its premises safe. The administrator of a nursing 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 patients.
Defense Considerations: In negligence actions, nursing homes are entitled to assert the sorts of defenses that are available inmost negligence cases, such as the contributory negligence of the injured party, and assumption of a known risk. However, in some cases, such as where a person has placed him or herself into a nursing home specifically because he or she needed to be protected from the effects of certain medical conditions, the defense of contributory negligence may not be allowed.
A common tactic employed by defendants in cases brought against nursing homes is to attack causation, and argue that a resident’s underlying disease(s) and physical condition caused the alleged injury, or at least make the issue of causation unclear.
Breach of Contract
Usually, a nursing home will enter into a contract with a resident, in which it sets out what services it will provide, and the cost of those services. If the perceived abuse or neglect of the nursing home or its employees is contrary to promises made in the contract regarding the care of residents, the nursing home can be sued under a breach of contract theory. Many contracts require only that the home provide such services as are “reasonably necessary” for the resident’s wellbeing, but even under this standard, a nursing home could be found negligent if it failed to meet the basic needs of a resident.
Some states provide criminal penalties for the abuse, neglect, or other mistreatment of nursing home residents. Historically, prosecutions for crimes involving abuse, neglect and exploitation of the elderly were relatively infrequent. This was due in part to: the reluctance of older persons to report incidents or press charges; the fact that the immediate harm was removed through the intervention of adult protective services; the difficulty some older people have in participating in a criminal trial; physical frailty; the frequent lack of supporting evidence; and the concern of some prosecutors that elderly victims might not make credible witness due to physical limitations or loss of memory.
Recently, however, there have been more and more prosecutions of such actions. Moreover, some states have enhanced penalties for crimes committed against older people. In some cases, failures to provide residents with sufficient food, keep residents clean enough, or prevent bedsores from occurring, have supported convictions for criminal neglect. In other cases, the unjustified use of physical restraint or force against nursing home residents has resulted in convictions for nursing home abuse. In some states, the definition of abuse may require inappropriate physical contact that harms or threatens to harm the patient, and may not cover verbal threats.