A caregiver for elderly individual will be civilly and criminally liable for mistreatment of that person, if the caregiver’s intentional actions or intentional lack of attention to an elderly person’s needs creates a serious risk of harm to a vulnerable individual, regardless of whether any harm was intended. Caregivers are deemed to be in a trust relationship with their elderly charges, and any serious breach of that trust relationship can give rise to a cause of action for negligence against both the abuser and the care facility that employs the abuser. Moreover, elder abuse is not limited to physical abuse or neglect, but also includes sexual assault, verbal taunting, and misappropriation of finances.
Elder abuse is not an isolated or rare problem. Studies from 2014 and 2015 reveal that up to 11% of the elderly population experienced some form of abuse from their caregivers within the past twelve (12) months. Moreover, these figures are almost certainly an underreporting of the commonality of elder abuse existing in American society, as for decades, both medical researchers and geriatric psychologists have warned regulators and the general public on the inordinate reticence of elderly individuals to report potential, suspected, or even undeniable instances of nursing home or elder abuse, whether witnessed or victimized by the criminal elder abuse related incidents. Specifically, a known issue with protecting elderly patients for regulators and others is
the fact that elderly patients in care facilities are often reluctant to report abuse out of fear that their abusers may retaliate or take pains conceal past and expected future abuse.
The U.S. Department of Health and Human Services maintains the National Center on Elder Abuse (“NCEA”), which attempts to track abuse reports through Adult Protective Services (“APS) operations in all fifty states. Even with the reluctance of elderly individuals to report abuse, APS data depict a growing trend in elder abuse cases, with regulators concerned that only a small percentage of actual abuse incidents actually are voiced publicly, with an even smaller figure actually resulting in civil or criminal complaints. To date, however, in light of growing national awareness on the endemic issue of elder abuse in the US, the courts and administrative organizations in all fifty (50) states are hearing an increasing number of negligence cases against caregivers and elder care facilities based on elder abuse causes of action, occasionally under recent statutory law changes easing the path to investigate, filing, and pursing claims of suspected elder abuse.
Moreover, elder care facilities and those tasked with preventing elder abuse note that there is a wide spectrum concerning the relative physical and cognitive capabilities of a given elderly person. In practice, numerous cases of elder abuse occur annually in which an elderly, medically disabled patient may not have the physical or cognitive ability to report abuse. Where an elderly person’s caregiver is a family member, the family relationship may cause further reluctance to report abuse due to concerns that the abusive family member will face legal consequences, and potentially, though abusive, the elderly individual may fear losing this limited source of social support.
If the facts of a case reveal that an elderly person has suffered an injury due to elder abuse, that person (or his proxy) may have a right to sue under relevant state laws for intentional or negligent torts and for consumer fraud for financial abuse. Cases that involve a violation of regulations without any injuries must be brought by a state’s attorney general, however, consulting with counsel to ensure the continued investigation of a concerned individual’s report of suspected elder abuse is advisable.
The NCEA advises family members and close friends to watch for signs of elder abuse and to investigate those signs as soon as they arise. Evidence of elder abuse includes unexplained bruises and injuries, malnutrition, dehydration, broken bones, and overmedication or sedation. Signs of sexual abuse include bleeding or soreness around the elder person’s genitals and torn or dirty undergarments. Verbal taunts may cause an elderly individual to withdraw or exhibit previously-unseen signs of dementia. An elderly person’s finances may be at risk if a caregiver notices frequent or large withdrawals from bank accounts, unexplained changes in wills or estate plans, or any disappearance of personal items.
If you suspect elder abuse in any capacity, your first order of business is to verify the facts of the abuse to the fullest extent possible. This will require you to do more than just hear the elderly person’s story. You should examine his or her environment and financial records, and get copies of all medical records and reports. Talk to other people who are under the care of the same personnel and in the same facility. Take pictures to preserve evidence. Even if the abuse strikes you as relatively minor, consider moving the elderly person to a new facility or caregiver.
Once a concerned party has conducted the requisite work to prepare, document, and as coherently as possible, present a case of suspected or documented elder abuse, consulting directly with state or federal elder abuse officials is advisable, with individuals most likely at this time facing the prospect of potentially filing a formal complaint with all business or regulatory entities tasked with the oversight of a given potentially liable facility permitting suspected ongoing elder abuse.
Most importantly, individuals should strongly consider consulting in a case-specific manner with a practicing attorney that handles elder abuse cases in an applicable jurisdiction to determine all applicable legal rights, options, remedies, and strategies related to addressing elder abuse complaints. Furthermore, differing states have very different deadlines (i.e. statutes of limitations) for filing elder abuse negligence lawsuits. Those deadlines generally begin to run as soon as elder abuse is observed or suspected. There may be different filing requirements for care centers that are within the jurisdiction of the Federal Government. The laws that apply to care centers and elder caregivers are varied and complex and an elder abuse negligence lawyer will help you to take the best course of action to protect an elderly person, to prevent further harm, and to recover damages for past abuse.
References:
http://www.ncea.aoa.gov/Library/Data/index.aspx#problem
http://www.ncea.aoa.gov/Stop_Abuse/Partners/APS/index.aspx
http://bphc.hrsa.gov/ftca/healthcenters/ftcahcfaqs.html