What qualifies as "neglect" in the nursing home setting ?
Neglect in a nursing home of an older person is defined as the failure to provide him or her with services essential to health and safety, such as food, clothing, supervision, and medical care. Depending on the case these failures may either be neglect or abuse.
What is Elder Abuse ?
“Elders” are afforded special protection under California law as embodied by the "Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)". Abuse under an EADACPA claim is a civil action that may include "physical abuse, neglect, fiduciary abuse, abandonment, isolation or other treatment with resulting physical harm or pain or mental suffering, the deprivation by a care custodian of goods or services which are necessary to avoid physical harm or mental suffering."
What is "physical abuse" under the Elder Abuse and Dependent Adult Civil Protection Act ?
Physical abuse is the easiest type of abuse under EADACPA to identify and includes battery, assault with a deadly weapon, force likely to produce great bodily injury; unreasonable physical constraint or prolonged or continual deprivation of food or water; any type of sexual assault and battery; use of physical or chemical restraint or psychiatric medication for punishment.
"Neglect" is also abuse under the Elder Abuse and Dependent Adult Civil Protection Act
Neglect is the most prevalent form of abuse under EADACPA and includes a failure to act reasonably in the care of an elder or dependent adult. Neglect may include failure to assist in personal hygiene and the failure to provide food, clothing and shelter or the failure to prevent malnutrition or dehydration.
Who qualifies as an "elder" under the law ?
An “elder” is any resident who is 65 years of age or older and special protection is afforded to this class of people; "dependent adults" are defined as any person between the ages of 16 and 64 who has physical or mental limitations which inhibits his or her ability to function normally and carry out activities of daily living, and any person between the ages of 18 and 64 who is admitted to a 24-hour healthcare facility. This includes general acute-care hospitals, psychiatric hospitals, chemical dependency recovery hospitals and skilled nursing and intermediate care facilities. Under the law, an otherwise young and healthy adult is entitled to protection under the Elder Abuse laws.
Where can elder abuse occur ?
Elder abuse can occur in any setting, but most cases occur in nursing homes or skilled nursing facilities which are understaffed and consist of staff that exist are poorly trained.
Why are neglect and abuse common in a nursing home ?
Several reasons can often contribute to the abuse or neglect of nursing home residents, including ,poorly trained and unqualified staff, inadequate numbers of staff and, reluctance of residents to report abuse out of embarrassment or fear. Unfortunately, many living in nursing homes are unable to properly communicate instances of nursing home neglect and abuse because of their physical or mental state.
What are some signs that nursing home abuse or neglect is occurring to a resident ?
• Dehydration or malnutrition
• Bed sores (decubitus ulcers)
• Unexplained weight loss
• Unexplained bruises, cuts, burns, or fractures
• Unexplained venereal disease or genital infections; vaginal or anal bleeding
• Unsanitary conditions
• Soiled linens or clothing
• Sudden changes in behavior
• Loss of resident's possessions
• Sudden financial changes
Where should suspected nursing home abuse be reported ?
If you suspect that your family member may be the victim of nursing home abuse notify the nursing home administrator immediately. The administration is required to investigate and report it to the state agency. You can also contact the adult protective service. Please see the page on this site "What You Can Do" for more detail and contact information.
How can an attorney help in an elder abuse case ?
California elder abuse cases are very complex and involve complicated legal, factual and damage issues. Investigation is crucial in litigating elder abuse cases and that any attorney complete a thorough investigation in elder abuse cases, particularly cases against California nursing homes. The investigation should include obtaining evidence of the actual abuse by reviewing medical records, with expert review and through the discovery process. In addition, the investigation may reveal other patients at the facility both during the time that plaintiff was in a nursing home and before that also suffered abuse. Further, a thorough investigation usually reveals statutory violations by nursing homes that have been violated and usually has been cited for violations to the plaintiff and other patients and whether the nursing home took corrective action.
Who has legal standing to bring a lawsuit for elder abuse ?
In addition to the Elder or Dependent Individual who is living, many of the “elder’s” family members may do so as well, such as: the elder's or dependent individual's estate or successors in interest if the elder or dependent individual has died; the elder's or dependent individual's family members if they witness the abuse; and the conservator or guardian of an incompetent elder or dependent individual.
What remedies are available in elder abuse cases ?
Assuming that the elder is still living, he or she can recover past and future medical expenses which may include increased care expenses, past and future wage loss, and damages for past and future pain and suffering. The elder can be awarded punitive damages if the misconduct is severe enough. In cases where the elder has died, the plaintiff survivors are entitled to recover all of the damages discussed above, plus damages resulting from the loss of society care and comfort which would have been provided to them by the elder. Further, plaintiffs may be entitled to attorneys' fees.
If you suspect that your loved one has been the victim of less than adequate care at their nursing home contact Phillips Law Offices today at (530) 265-0186 for a confidential no charge legal consultation.