June 6, 2001 - Reviewing Nursing Home Liability
Nursing home liability seems to be an area in which the frequency and severity of claims is on the rise. The negative public perception of this industry is attractive culture material for litigation. The defense is in the process of developing new strategies and novel approaches to combat these negative perceptions.
The liability of nursing homes and assisted living centers for negligence has not historically been a strong focus of plaintiffs' attorneys in medical malpractice actions because the advanced age of nursing home residents typically limits financial award for injury.
However, as a result of the heightened scrutiny of the Attorney General and other state agencies, this area of law is a new “hot” subject among lawyers. Also, it has become difficult to defend these claims because the defense attorneys need not only defend the claims themselves, but must work to alter the popular perception of the long-term care industry itself.
Making long-term care liability a subpart of medical malpractice has several distinct features that make it particularly attractive for claims. Nursing homes are a highly regulated industry in America - second only to nuclear power. Consequently, there are a variety of sources of administrative and investigative materials that are a fertile sources of information with which to prosecute claims. The vast majority of claims against nursing homes fall under one of three basic substantive theories of liability:
1. Lack of measures to insure physical safety;
2. Lack of measures to adequately address the condition of emotionally or cognitively impaired residents; and
3. Neglect or lack of attention to medical conditions.
The most frequent cause of injuries in nursing homes usually are the result of some deficiency in securing the physical safety of residents, who because of various medical conditions including osteoporosis and impairment in balance are at high risk. Accidents often occur during unassisted ambulation, lifting and transfer of residents, or can be the result of a fall from a bed or chair.
While this population tends to be high risk, supervision, assistance and precautions may be inadequate, exacerbating the chances for injury. The lack of adequate personnel may be due to the limited reimbursement by Medicare/Medicaid, which makes the cost of care often economically not viable.
A less frequent area of claim is injury due to the altered mental status of the resident in the form of Dementia, Alzheimer's, or some other psychiatric/neurological impairment. These impairments often place the resident at risk for participation in unpredictable activities such as elopement or even violence towards the staff and/or other residents. The issues in such cases revolve around whether proper evaluation was obtained and whether the behavior, such as elopement or violence, was truly unpredictable in a resident with a history of altered mental status. /P>
The third area in which claims arise is neglect of various medical conditions in debilitated residents. There are a number of ways in which debilitated residents may be further injured through lack of attention, including the formation of decubitus ulcers, dehydration and/or malnutrition, or merely the failure to attend to the personal hygiene needs of the resident.
Residents of nursing homes tend to be unattractive targets for certain defenses such as comparative negligence and indeed these plaintiffs are rarely appropriate to be deposed and rarely testify at trial. Since the liability issues in most medical malpractice cases are based on medical records, defendants' testimony and expert testimony - rather than the plaintiff's testimony - the presence of a sympathetic, but impaired plaintiff tends to enhance plaintiff's position with regard to damages without detracting from liability claims. Loss of "golden years" arguments in this context usually finds a welcome audience in the form of jurors who have had relatives similarly situated.
Because the general perception of long-term care facilities by the public is heavily influenced by the media, allegations concerning yield and profit motive as the rationale behind limited staffing and training inadequacies sometimes find acceptance among juries.
Napier & Partners is committed to upholding the quality of care in our long-term care institutions by taking swift legal action to compensate nursing home residents and their families for injuries resulting from neglect or inadequate care. Only this way will the quality of care for all residents be assured. If you feel that you or a loved one has been victimized by medical malpractice while in the care of a senior citizen facility, call Napier & Partners now at 1-877-AZINJURY (1-877-294-6587) or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.
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