Do Nursing Homes Have Special Legal Protection?
Nursing homes provide essential services to Americans in need, including assistance with daily activities, personal care, and medication. Statistics show that more than 40 percent of the U.S. population older than 65 will live in a nursing home before death. While it is a difficult decision to allow a loved one to enter a nursing home, many of us face a time when we can no longer meet the needs of an elderly or dependent family member at home. Needless to say, people needing these services represent some of the most vulnerable members of society. We expect nursing homes to treat residents with respect and dignity, and to meet a reasonable standard of care when providing services. Thankfully, many nursing homes meet our expectations. Unfortunately, some do not.
Statistics Show a Darker Side
Research shows a darker side to some nursing home care. According to the National Center On Elder Abuse, one study showed that approximately 33 percent of nursing homes had been cited for violating federal standards. Another study found that 44 percent of nursing home residents interviewed reported abuse, and 95 percent reported experiencing or observing neglect. In one study, more than half of nursing home staff admitted to some form of mistreatment of older residents. While not all of the findings in these studies rise to a level supporting liability in a lawsuit, the statistics are nevertheless alarming.
The Centers for Disease Control and Prevention (CDC) reports that residents in nursing homes fall down with great frequency, and that approximately 1,800 die each year due to injuries resulting from these falls. While some of these falls cannot be prevented, some occur as a result of the negligence of nursing homes and their staff.
Nursing Home Residents’ Rights
In general, nursing homes do not enjoy special protection from the law. Nursing homes and their employees, like other professionals, are required to act reasonably, and can be held responsible in a court of law for injuries caused by their negligence. They can also be held liable for injuries caused by intentional actions, such as sexual abuse or striking a resident.
Moreover, if a nursing home receives Medicare or Medicaid, the residents have federal rights guaranteed by Title 42, Part 483 of the Code of Federal Regulations. A small sampling of the many protected rights includes the right to:
- Access the patient’s records
- Be fully informed concerning the resident’s health status, including medical condition
- Refuse treatment
- Choose an attending physician
- Appropriate nutrition and hydration
- Receive necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with the resident’s comprehensive assessment and plan of care.
Mandatory Arbitration Provisions
In some cases, a patient, usually at the time of admission, signed an agreement with a mandatory arbitration provision. Such provisions are contractual, and can require a nursing home resident to submit a claim to binding arbitration in lieu of pursuing a lawsuit. Therefore, a careful review of all contracts signed by the resident is essential. A lawyer can help evaluate the validity and applicability of any arbitration provisions.
Is Abuse or Negligence Occurring?
Not all injuries or harm to a resident result from culpable conduct of the nursing home. An elderly population naturally suffers illness and injury at a higher rate than a younger population. However, given the statistics discussed above, along with reports that many incidences of nursing home negligence go unreported, it pays to be vigilant. Unexplained injuries, mood changes, poor hygiene, weight loss, and improper medication dosage are only a few signs which might suggest nursing home neglect or other underlying problems.
Determining whether abuse or negligence has occurred in a nursing home can be difficult to discern without investigation. Often times, a resident’s medical records must be reviewed and witnesses must be interviewed. While nursing home residents are entitled to their records, obtaining them is sometimes challenging. On many occasions, experts, such as physicians and nurses, must be consulted. Personal injury lawyers are uniquely qualified to handle such investigations.
Nelson MacNeil Rayfield takes seriously the responsibility of protecting our elderly and dependent citizens and loved ones by holding responsible those who inflict harm on this vulnerable population. We are experienced in investigating and pursuing those who have intentionally or negligently harmed nursing home residents. If you need help evaluating your case, or simply have questions, please call or fill out a form for a free consultation.