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At least 1.6 million people reside in one of the 18,000 nursing homes in the United States. Unfortunately, many nursing home residents suffer abuse or neglect. Examples of abuse or neglect include the development of pressure sores, dehydration, sexual assault, improper use of bed rails, inadequate assistance transferring from bed to chair and inadequate fall prevention or supervision. Our firm has experience handling the claims of those who suffer abuse or neglect in a nursing home and is able to address the concerns you or a loved one may have.
Cases of nursing home abuse or neglect involve the application of state and federal law which address the treatment a resident must receive. Many of the issues raised by state and federal law which apply to nursing home care are explained below. If you have questions regarding these issues, please contact our office for a free consultation.
Illinois Nursing Home Care Act
The Nursing Home Care Act allows a resident to recover for the actual damages suffered as the result of "abuse" or "neglect". Actual damages or compensatory damages include the medical expenses incurred and reasonably expected to be incurred in the future. Attorney fees and the cost of litigation for the violation of a resident's right to be free from neglect or abuse may also be claimed.
"Abuse" is defined as "any physical or mental injury or sexual assault inflicted on a resident other than by accidental means." "Neglect" is defined as "a failure to provide adequate medical or personal care or maintenance when that failure results in physical or mental injury to a resident or the deterioration of a resident's physical or mental condition." The owner of the nursing home and the license holder may be liable to a resident for any intentional or negligent act or omission which injures the resident.
The Nursing Home Care Act empowers the Illinois Department of Public Health to monitor Illinois nursing homes, inspect complaints of abuse or neglect, fine nursing homes for violations of a resident's rights and establish standards for the qualifications and training of nursing home employees. A review of the Illinois Department of Public Health inspection documentation or responses to complaints of abuse or neglect may demonstrate that the nursing home is inadequately staffed or that staff is not sufficiently trained.
The Nursing Home Care Act also protects residents who seek compensation for the abuse or neglect they have suffered. The Act states that a nursing home shall not transfer, discharge, evict, harass, dismiss or retaliate against a resident or a resident's representative because of any report, testimony or complaint. This protection becomes especially important if the resident remains at the nursing home after the alleged abuse or neglect occurred. It also encourages nursing home residents to report abuse and neglect without fear of retribution.
Negligence Claim Against a Nursing Home Also Permitted Under Illinois Law
A statutory claim for violation of the Nursing Home Care Act is not the only remedy available to those injured as a result of negligence of nursing home staff. Illinois law permits a negligence claim against a nursing home if reasonable care is not used in the operation and staffing of the nursing home or if staff fails to properly supervise, care for and treat the nursing home resident. Such claims may seek compensation for a variety of elements of damage including the pain and suffering that is experienced, the inability to do things that the resident had otherwise been able to do and the disfigurement the resident suffers. If the negligent care rendered by nursing home staff results in death, an action may be maintained against the nursing home under Illinois Law. (See the Wrongful Death section of this website for further information.)
Federal Regulations of Nursing Homes
In 1987 congress enacted the Federal Nursing Home Care Act. The Act establishes standards for the care nursing home residents must receive. The legislation provides that a nursing home must provide services and activities to attain or maintain the highest practicable, physical, mental and psycho social well-being of each resident in accordance with a written plan of care. The regulation sets the following specific guidelines that nursing homes must follow with in order to receive Medicare or Medicaid funds:
- Have sufficient nursing staff to providing nursing and related services to attain or maintain the highest practicable, physical, mental and psycho social well-being of each resident;
- conduct initially and periodically a comprehensive, accurate, standardized and reproducible assessment of each resident's functional capacity;
- develop a comprehensive care plan for each resident that includes measurable objectives and time tables to meet a resident's medical, nursing, mental and psycho social needs;
- periodically review and revise the comprehensive care plan;
- prevent the deterioration of a resident's ability to bathe, dress, groom, transfer, ambulate, use the toilet, eat and communicate;
- if the resident is unable to carry out the activities of daily living, the nursing home must provide the services necessary to maintain good nutrition, grooming and personal and oral hygiene;
- ensure that residents do not develop pressure sores (see below) and, if a resident has pressure sores provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing;
- ensure that the resident receives adequate supervision and assistive devices to prevent accidents;
- provide each resident with sufficient fluid intake to maintain proper hydration and health;
- ensure that residents are free of any significant medication errors;
- ensure that the medical care of each resident is supervised by a physician and provide or arrange for the provision of physician services 24-hours a day in case of emergency;
- provide pharmaceutical services to meet the needs of each resident;
- maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurate, readily accessible and organized.
The failure of a nursing home to comply with these regulations is a violation of federal law. Such a violation of federal law may be important in proving that the nursing home was negligent. A thorough review of the resident's record can determine whether the federal regulations have been followed and, if not, in what respect the failure to follow federal law resulted in injury.
Pressure Sore Litigation
The development of pressure sores on a nursing home resident is a common cause of litigation. A pressure sore is any lesion caused by unrelieved pressure resulting in damage to the underlying tissue. It is also known as a "decubitus ulcer" or "bed sore". Pressure sores typically occur over bony prominences and are graded or staged to classify the degree of tissue damage. In a bed ridden patient, most pressure ulcers form on the lower back below the waist, the hip bone and on the heels. Pressure sores are oftentimes painful and may reflect the deterioration of a resident's physical condition. Given the frail medical condition of many elderly nursing home patients, the onset and development of pressure sores can contribute to infection and at times death.
The prevention of pressure sores is specifically addressed in the Federal Nursing Home Care Act. Most nursing homes have their own policies or procedures to address the prevention and management of pressure sores as well. Many resources are available for nursing homes to understand the cause of pressure sores, prevent their development and if present, treat them to prevent further growth. Clinical Practice Guidelines have been established by the Agency for Health Care Policy and Research. One Clinical Practice Guideline provides "Skin Care/Early Treatment Guidelines" which instructs as follows:
- Inspect skin at least once a day;
- individualize bathing schedule;
- minimize environmental factors such as low humidity and cold air;
- avoid massage over bony prominences;
- use proper positioning, transferring and turning techniques;
- use lubricants to reduce friction injury;
- institute a rehabilitation program;
- monitor and document interventions and outcome;
- minimize skin exposure to moisture;
- cleanse skin at the time of soiling.
Specific instruction for bedridden residents who may be considered at high risk for developing bed sores is also provided by the Clinical Practice Guidelines. The following is recommended for high risk patients:
- Reposition the resident every two hours;
- use pillows or foam wedges to keep bony prominences from direct contact;
- use devices that totally relieve pressure on the heels;
- avoid positioning directly on the hip;
- elevate the head of the bed as little as possible and for as short of time as possible;
- use lifting devices to move rather than drag individuals during transfers and position changes;
- place at risk individuals on a pressure reducing mattress.
Whether a nursing home complied with the Clinical Practice Guideline noted above may be relevant in determining whether nursing home staff was negligent in caring for a patient who develops pressure sores. Statements or depositions from witnesses including the nurses or other staff involved in the patient's care may also be necessary. It is important to involve an attorney experienced in managing these issues if compensation is sought for the injury suffered.
Conclusion
The Law Offices of John J. Dwyer, Jr., P.C. offers a free consultation for those who have been affected by nursing home abuse or neglect. Our firm has handled nursing home negligence cases for clients whose trust was breached and loved ones harmed by nursing home neglect or abuse. Please contact our office if you have specific questions regarding your rights or the rights of your loved ones.
Contact us today for a free case evaluation
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