Nursing Home Liability

Nursing home and assisted living facilities must provide a certain level of care that is reasonable per current medical and nursing home care industry standards to residents and patients. If injury or death occurs when a patient or resident is under the care and supervision of a nursing home facility or employed staff member, the nursing home or assisted living facility may be legally responsible, pending the case-specific context of the injury or death in question. Determining if a nursing home facility or any of the facility’s employees are liable for your loved one’s injury or wrongful death involves proving that a duty of care owed was breached, while also showing that the negligent breach of duty owed was in fact the proximate cause of the injury or death sustained by the patient or resident.

General Tenets of Negligence in Nursing Home Liability Cases

Negligence, or the failure to use reasonable care at the level required by law or current industry practices, more than likely will leave a nursing home or caregiver open to liability. However, in any tort claim including those related to nursing home injuries or deaths, five essential factors must be proven in order for a claims case against a given liable party to prevail, including:

  • First the plaintiff needs to establish the existence of a legal duty to exercise reasonable care
  • Second, the plaintiff must demonstrate that the duty owed by a caregiver was not provided or was provided in a substandard manner
  • Third, a plaintiff in any negligence tort case must demonstrate by the preponderance of the evidence that the proximate cause of injuries or harm endured by the nursing home resident was the failure to provide a reasonable standard of care and meet a standard of care owed
  • Fourth, the plaintiff and his or her nursing home litigation counsel must document damages sustained as the result of the negligent actions perpetrated by the defendants in the case
  • Fifth, the plaintiff or patient must demonstrate that his or her damages sustained are both pecuniary and likely, non-pecuniary in nature, while also not as the result of the fault of the patient or other potentially liable parties

Duty Owed in Nursing Homes Explained

When contractually agreeing to provide care and medical attention for a person’s loved one or family member, nursing homes or assisted living facilities accept a level of liability for failing to adhere to the duty of care that is required by law is subject to case-specific considerations and medical expert testimony, as well as a number of federal and state laws regulating negligence claims involving the elderly, as well as regulating tort litigation such as the federal-jurisdiction provisions in the Nursing Home Reform Act, but also subject to a variety of state law and federal law regulations. Ultimately, the duty owed to a given patient is contingent upon a litany of case-specific factors, including most notably the medical needs and relative health of the elderly patient, as well as the medical history of the individual, and of course, the relative standards of care for similar type patients across the industry as a whole.

When a senior living facility does not provide or fails to provide such things as a safe and clean environment, fails to provide requisite medical care, fails to prevent slip and fall injury, declines to prevent nursing home staff abuse, or neglects patients leading medical, physical, or psychological damages, the duty owed by a nursing home facility and at least one individual staff member is left unfulfilled to the elderly patient, or victim, who is entitled by law, including criminal, tort, and contract law, to a reasonable standard of care.

Reasonable Care in Nursing Homes Explained

Reasonable care is not as easily established as a duty owed. The expected level of care and the failure to provide this legally-constructed level of reasonable care may not correlate closely in all cases. Rather, reasonable care is defined by case-specific considerations on an individual-patient basis in light of the usual standards of care in similar cases across the nursing home industry. Determining what reasonable care may be may not be necessary in many cases, as the harms and damages sustained by elderly patients are clearly indicative of unreasonable treatment in many cases. However, there must be clear evidence that this failure to provide reasonable care was the actual or cause in fact of damages sustained by the elderly patient by a preponderance of the evidence. The burden of proof rest with the plaintiff to establish that the nursing home or assisted living facility was in fact the caused the cause of your loved one’s injuries due to their evidently negligent actions and failure to meet the minimum or requisite level of care. Moreover, the facilities that employ negligently performing staff members, as well as owners of these facilities may be held liable for their role in permitting elder abuse to occur.

For further in-depth reading on nursing home liability and patient medical injuries, read the following sources from the New England Journal of Medicine and the US Library of Congress on this topic:

 

http://www.nejm.org/doi/full/10.1056/NEJMsa1009336

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/

http://www.loc.gov/law/help/medical-malpractice-liability/comparative.php

http://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html

 

 

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