When Should You Consider Suing a Nursing Home?

Morton J. Grabel
Morton J. Grabel

There are circumstances where a nursing home should be sued for a resident or patient injury.

Although no one really wants to sue a nursing home, convalescent home, rest home, assisted care facility or elder care facility because it is a place of good intentions and the provider of care primarily to the elderly. However, there are times when the facilities should be held legally responsible for their negligent, careless or abusive conduct. For example, a personal injury or medical malpractice lawsuit should be filed when there is an act of negligence, neglect, or abuse on the premises that causes injury to a resident or patient.

What kind of action or failure to act should lead to the filing of a lawsuit?

There are numerous accidents, willful and intentional acts, and failures to act that may leave a nursing home or other health care facility legally responsible, either based on the conduct of an employee or on a policy, procedure or on-going practice at the facility.

For example, a facility could be sued for failure to keep the premises reasonably safe and free of hazards and dangers the facility and its staff are aware of and those dangers or hazards they should be aware of through proper attentiveness. These hazards include everything from preventing slip and fall accidents to preventing one resident from attacking another resident.

Another example would be leaving a cleaning cart full of chemicals unlocked, uncovered or unattended for residents to either drink the chemicals, or throw the containers and chemicals at another resident.

They could be sued for negligent hiring practices, negligent training of staff and negligent supervision of an employee who ends up neglecting, abusing or otherwise intentionally harming a patient.

Not properly screening prospective employees who subsequently either steal from residents or commit sexual acts upon the patients and have a record of prior criminal acts elsewhere is another example of negligence.

Inadequate supervision of residents who fall and injure themselves is negligence. For example, a patient is given a “Risk Assessment” during the admission process. It was determined the resident is at high risk for falls. Notwithstanding the preceding, resident is admitted, but the facility does absolutely nothing to protect the resident from falls. Resident falls and breaks their hip and arm.

For failing to maintain adequate health and safety policies including such policies as keeping clean and sanitary conditions in resident rooms and in common areas such dining halls and resident club-house areas, a facility could be sued.

Also for failure to provide adequate medical treatment that meets the medical standard of care under the circumstances a facility could be sued. When the provision of sub-standard medical care causes harm to a resident, there may be a case for medical malpractice against the nursing home facility or against a medical professional who treated the resident.

Regulations on the standard of care, in addition to the State of California statutory scheme, cover these issues.

In addition to state laws, if a nursing home accepts Medicare, the facility must follow Federal Regulations that establish the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides the resident environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistance devices to prevent accidents.

If the nursing home fails to comply with these regulations and a resident is injured, the nursing home is liable to be sued.

What must a facility do to comply with this regulation? The example facility had several residents, who had fallen many times.

One resident had Parkinson’s disease, long-term memory deficits, anxiety, periods of altered perception and restlessness. The facility had implemented several interventions including a low bed with mats, a body alarm, adjustment of medications, a lap buddy in his wheelchair, providing therapy to assist in sitting in the wheelchair, use of a Geriatric chair, walking with assistance of a therapist, toileting the resident on regular intervals, and placing the resident near the nurses’ workstation. But the resident continued to fall. The court ruled that all these implementations were not enough and that the facility should provide continuous supervision when the resident was out of bed. The judge found that leaving the resident unwatched, for even a short time, was an invitation for the resident to fall. In more simple terms, a facility should not admit residents if they cannot protect them.

Other residents fell because they disabled wheelchair alarms, body alarms were not working, would not use a walker, etc. The court found that more supervision must be afforded these residents and that the facility violated the regulation which caused the residents to sustain serious injuries.

However, proving liability can be complicated.

When a resident is injured at a care facility, it is not always obvious what exactly went wrong, and who might be legally responsible. The evidence available is often incomplete and medical records may be self-serving for the nursing home.

For example when medical record pages have disappeared and have reappeared re-numbered or being re-written, the facility tries to camouflage negligent conduct or overt abuse. In these cases, the best first step would be discussing the situation with an experienced attorney.

Please note that the information provided above is general and should not be relied upon for particular circumstances or cases. For further information or legal questions concerning other matters, please call the Law Offices of Morton J. Grabel in Temecula at (951) 695-7700.

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