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Common Causes of Action in Nursing Home Negligence Lawsuits
This article is designed to help you identify potential nursing home cases by informing you of the relevant laws surrounding these facilities as well as common scenarios triggering skilled nursing facilities.
NURSING HOME LAWS
The first thing to consider when analyzing the legal regime regarding nursing homes is that it is a two-tiered structure. They are regulated by state and federal laws. By accepting federal funds (through Medicare and other streams), Illinois nursing homes are pulled into the orbit of Omnibus Budget Reconciliation Act of 1987 (OBRA 1987). This Act was put in place to safeguard the daily lives of nursing home residents. It sets a high bar of service by mandating that all homes afford residents the highest quality of life possible. OBRA also outlines a Bill of Rights for nursing home residents, which among other things includes the following:
- Appropriate medical, psychological, and other relevant care.
- Dignity and respect in care.
- Information and a role in all medical decisions.
- Freedom from neglect and abuse.
- Privacy in their care.
- Ability to refuse care.
- Process to complain about their care.
OBRA also puts specific mandates on nursing homes regarding staff, records, and provisions for avoiding common problems such as bed sores. This federal law puts a base level of care for nursing home residents. States may add onto this at their own choosing and Illinois has done so in its Nursing Home Care Act (210 ILCS 45/1 113). This Act puts certain requirements on “long-term care facilities.” By its definition, these are homes that care for more than 3 chronically ill or infirmed persons. For those homes falling under this definition, they must provide residents with rights akin to OBRA’s Bill of Rights but also others including:
- Ability to handle their own financial decisions.
- Freedom to hold their own personal items and wear their own clothes.
- Freedom of religion while under the home’s care.
- Capability to see visitors, use phones, and check mail.
This two-tiered scheme is the structure for all of your Illinois nursing home cases. If you are unclear about any aspect of your case, you should consult these laws.
NURSING HOME MISCONDUCT
There are a couple of common acts of misconduct committed by nursing homes upon their residents that you should be aware of and when initiating your lawsuit. First of all, you can always bring a claim for medical malpractice for the actual underlying medical malpractice, if any. To read about medical malpractice actions and how you should try them, click here.
With the regards to the actual care, there are two more regular claims: abuse and neglect. Federal law actually defines both of them. The Code of Federal Regulations states that abuse is "willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish," (42 C.F.R. 488.301) and that neglect is "failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness." (42 C.F.R. 488.301) Abuse can include physical, mental, and even emotional abuse.
However, it can also include things you might not have considered such as the use of unapproved medications, false imprisonment (either physically or virtually), and the withholding of food or drink. Neglect encompasses the nursing home’s need to adequately give a patient food, water, and medications. However, they also need to be effectively communicate with the resident’s doctors and medical staff about his or her medical condition. If they do not keep them in the loop about the resident’s condition, they can be liable for neglect.
Other common problems that residents face and that nursing home’s are liable for include the following:
- Bed sores / pressure sores
- Improper/Excessive Restraints
- Wrongful death
- Sexual Assault
- Improper medication or treatment
To learn more about what exactly these types of cases look like and if you (or someone you know) may have a case against a nursing home, contact us today. We are experienced nursing home attorneys and can guide you through the legal process step-by-step so you are completely informed about your potential recovery.