Injury Claims Arising From Elder Neglect and Abuse

Nursing homes and assisted living facilities can be held liable if they're carelessness or intentional abuse causes residents injury. Here are signs to look out for.

By Jeffrey Downey, Washington D.C. Attorney

Elders in both nursing homes and assisted living facilities are vulnerable to neglect and abuse. The potential for neglect is even greater for demented elders who cannot advocate on their own behalf.  If you have a loved one in an assisted living facility or nursing home it is important for you to visit them and act as an advocate on their behalf. Make sure you keep a close eye on their physical and mental condition for potential signs of neglect or abuse.

These facilities can be held accountable in the event that a resident is harmed through staff inaction, carelessness, or intentional acts. For more on how liability works in these cases, see When Can You Sue a Nursing Home for Negligence?

Potential signs of neglect or abuse can include the following:

Bedsores

Bedsores, also known as pressure sores or pressure ulcers, are a form of injury to the skin and underlying tissues.  They usually develop when an individual is sitting or lying in bed or chair for a long period of time so that pressure cuts off the circulation to an area of the body.  The sacrum, heels and elbows are pressure points of the body that may be particularly vulnerable to early skin breakdown.   Pressure sores range from Stage 1, which is just a reddened area to Stage 4, which is a deep pressure wound penetrating the skin, fat and muscle.  It is important to respond to a pressure sore at its earlier stages with aggressive pressure sore prevention, because they are harder to heal in their late stages.  Proper nutrition and exercise are also important considerations in pressure sore prevention.

Falls/Fractures

Falls suffered by elderly patients in both nursing homes and assisted living facilities are one of the highest risk factors for mortality.  The standard of care requires that long-term care facilities initially evaluate a patient to determine his or her risk factors for falling.  Where a patient has significant risk factors for falling, the facility should put in place a fall prevention plan to reduce the risk of falls.  If your loved one has already suffered a fall in a nursing home, ask to attend a care plan meeting and find out what the facility’s care plan contains for fall prevention.   Typical interventions including physical therapy and restorative nursing (for gait training), low beds, alarms, bed rails, assistive devices, toileting schedules, patient education, medication reduction, bedside commode, floor mats and hip protectors.

Malnutrition and Dehydration

Malnutrition or dehydration can be a sign of elder abuse or neglect.  A person is malnourished when he or she is not getting enough nutrients to support proper body functioning.  As taste, smell, and appetite decrease with old age, it is important that a nursing home actively encourage and monitor meal consumption.   Some patients may benefit from an appetite stimulant or nutritional supplement.  Similarly, it is important that a nursing home push fluids and monitor a patient’s fluid level, where that patient may be at risk for dehydration.  Undernourished patients can become weak, bedridden and depressed.  In such a debilitated condition, these elders are more vulnerable to injury and other adverse medical complications.  Inadequate staffing in a nursing home can contribute to dehydration or malnutrition, especially for residents who require staff assistance with meal consumption.

Sexual Abuse

Unfortunately, elders in nursing homes are vulnerable to sexual abuse.  This is especially so for elders who have lost the ability to communicate.  Most states require nursing homes and assisted living facilities to undertake criminal background checks.  However, these background checks may not always be successful in weeding out all sexual predators.  The signs of sexual abuse could include your loved one’s display of fear or anger when a particular caregiver is near.  Bruising or rashes on one’s private parts can also be a sign of sexual abuse.  If you suspect your loved one has been subject to sexual abuse, you may want to pursue an immediate hospitalization not only for treatment but preservation of important evidence that may confirm whether such abuse occurred.

Impaction/Bowel Blockage

Constipation and impaction of residents are common in long-term care facilities.  However, significant impaction can be a sign of neglect.  Nursing facilities are supposed to monitor intake and output of a patient and respond to any situations in which a patient has not voided in two or three days.  If initial constipation is not relieved, it can develop into fecal impaction which results when feces becomes hardened and wedged in the rectum.  Some patients who suffer severe impaction end up dying from the impaction or resulting complications.

Medication Errors, Overmedication

Overmedication and lethargy can be a sign that your loved one is being neglected in a long-term care facility.  Some medications (called psycho-tropics or antipsychotics) are considered chemical restraints, and a nursing home is required to limit their use of such medications because they adversely impact upon a resident’s physical and mental health.  While nursing homes should be striving to reduce the amount of unnecessary psychotropic medications, the reality is that many nursing homes rely on such medications as a way of controlling their resident population.  Signs of overmedication could include a change in mental status, lethargy, and weakness.  If you have observed a change in your loved one’s status, ask the doctor about a possible change in medications.  While nursing homes typically administer medications, most medications have to be ordered by an attending doctor who may not be intimately familiar with your loved one.  It is important that you explain to the doctor that your loved one was more active and alert before he or she started taking certain medications.  If your loved one is on significant mind-altering medications, consider asking the doctor for a drug holiday to see how he or she responds to the elimination of certain medications.

For more, please see Nursing Home Liability for Medication Errors.

Unexplained Injuries/Death

Unexplained injuries or death can be a sign of nursing home neglect or abuse, or they may be the natural product of a disease process.  As the elderly tend to have brittle bones and bruise easily, great care must be used when transferring a patient, especially one who is immobile.  Long-term care facilities are required to document the existence of any unexplained injuries and investigate the potential causes.  If your loved one has sustained an unexplained injury, ask the facility for an explanation and find out if they have created an incident report that addresses how this injury occurred.   Ask to see those records.  It is important for nursing facilities to investigate how certain injuries occurred so they can take action to prevent the recurrence of such injuries in the future.  It may be necessary to have a medical expert review the records to determine the significance of an unexplained injury and whether it can be attributable to neglect.

Significant Regulatory Violations

All nursing homes and assisted living facilities are subject to regulatory oversight by their licensing authority.  Such oversight typically involves at least yearly inspections or more frequent investigations if complaints are lodged with the licensing department.   You should research the regulatory history of any nursing home or assisted living facility both before and during any stay of a loved one.

Feel free to call or write to the licensing authority directly and request all available information under the Freedom of Information Act.

Inadequate Staffing

Much of the neglect experienced by our elders in long-term care facilities can be traced to a lack of staffing; either inadequate numbers or staffing that simply does not have the required training to meet the needs of their residents.  Under federal law a nursing home receiving federal funding is supposed to have sufficient staffing to provide nursing and related services to attain and maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident.  See 42 C.F.R. § 483.30.

In assisted living facilities, staffing regulations vary from state to state, but most states require a facility to have staffing sufficient to meet the needs of its residents.  If you have a loved one in a nursing home, it is a good idea for you to visit them at different times to observe the staffing levels.  You may also want to visit at meal time to find out if your loved one is getting the staff assistance he or she needs with meal consumption.  It is vitally important that the facility have enough staffing to provide exercises, ambulation and physical activities for the residents.

To learn more about the legal issues in these cases, please see our section on Nursing Home Injury & Elder Abuse Law.

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