Torts: Malpractice Liability: Healthcare Providers

With the increased number of elderly people in our population and the increased number of elderly people who reside in nursing homes, there has been an increase in the number of tort actions involving nursing home abuse and nursing home neglect. Although both federal and state agencies are responsible for inspecting and regulating nursing homes, many nursing home residents are being subjected to situations that may constitute abuse or neglect.

A tort action involving nursing home abuse or neglect may be seeking damages for simple negligence or damages for an intentional tort, such as battery or sexual assault. The abuse or neglect may be a single occurrence or it may be a recurring activity. The abuse or neglect may include physical injuries as a result of a fall, malnutrition, or dehydration. The abuse or neglect may also occur as a result of bedsores, gangrene, pneumonia, over-medication, or the giving of wrong medication. The abuse or neglect may further be the result of poor supervision, theft, sexual assault by another patient or by an employee, or physical or mental abuse.

Nursing homes have the duty to properly assess the health and needs of their residents. This duty includes the implementation and the following of a plan with regard to their residents. The plan may include the use of safety devices, such as bed alarms, to prevent falls. Nursing homes also have a duty to be adequately staffed. Nursing homes further have a contractual duty to provide safe and reasonable care to their residents in exchange for payments that they receive on behalf of the residents.

Nursing homes are considered to be negligent if they fail to regularly assess the health and needs of their residents, if they fail to supervise and train their staff, or if they fail to provide adequate staff for their residents. Although nursing homes must provide adequate safety devices for their residents, they cannot use total restraints on their residents unless no other method would provide for the residents’ safety. Nursing homes are required to keep charts or records of their residents’ treatment, medications, and daily activities. A relative of a nursing home resident is entitled to a copy of the entire chart within two business days of his or her request. The chart often provides evidence as to whether a resident has been abused or neglected. If the relative suspects that his or her relative may have been abused or neglected, the relative may be entitled to seek damages on behalf of the resident or on behalf of the resident’s estate, if the resident has died.