A nursing home, convalescent home, rest home, or elder care facility can be held legally responsible -- meaning that a personal injury or medical malpractice lawsuit can be filed -- when an act of negligence, neglect, or abuse on the premises ends up causing harm to a patient or resident.
There are countless accidents, intentional acts, and failures to act that may leave a nursing home or other care facility on the legal hook, either based on the conduct of an employee or based on a policy or ongoing practice at the facility. Here are a few examples:
Failure to keep the premises reasonably safe and free of hazards (meaning dangers that the facility and its staff are aware of, and those they should be aware of through reasonable diligence). This includes everything from preventing slip and fall accidents to preventing one resident from attacking another.
Negligent hiring of an employee who ends up neglecting, abusing, or otherwise intentionally harming a patient. The failure to properly train and supervise employees may also come into play here.
Negligent supervision of residents who then fall, or otherwise injure themselves.
Failure to maintain adequate health and safety policies, including keeping clean and sanitary conditions in resident rooms and in common areas.
Failure to provide adequate medical treatment that is in line with the medical standard of care under the circumstances. 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 and/or against a medical professional who treated the resident.
If a nursing home accepts Medicare, the nursing home must follow Federal Regulations which set forth the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides:
The facility must ensure that:
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? An administrative law judge for the Department of Health and Human Services found a one facility violated this regulation. The 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 geri-chair, walking with assistance of a therapist, toileting the resident on regular intervals, and placing the resident near the nurses work station. 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 period of time, was an invitation for the resident to fall.
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 violation of the regulation caused the residents to sustain serious injuries.
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 may be self-serving for the defendant – the nursing home. In cases like these, your best first step would be discussing the situation with an experienced attorney.