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June 07 2007 - Nursing Home Residents´ Legal Rights

Nursing homes should provide a safe secure place for elderly residents. However, people in nursing homes sometimes encounter problems.

Similarly, family members or individuals with loved ones in nursing homes have concerns about resident treatment in such facilities.

There are several resources for consumers who are unsatisfied with the care provided by the nursing home. It is important that consumers know their legal rights and options when it comes to long term care.

The Long Term Community Care Coalition plans to conduct workshops to provide information for consumers and legal advocates surrounding nursing home issues. www.ltccc.org

The purpose of the workshop is to provide a background of legal resources and potential claims for consumers who have faced problems with nursing home facilities, and serve as a reference for legal organizations that may not be familiar with nursing home residents’ legal rights.

There are a number of laws protecting residents against nursing home abuse. Under the federal Nursing Home Reform Law of 1987 (OBRA “87) all nursing home residents are entitled to receive quality care and live in an environment that maintains the quality of their physical and mental health. This includes freedom from neglect, abuse and misappropriation of property or funds.

Although the law pertains only to nursing homes that receive federal funding through Medicaid or Medicare, because the vast majority of facilities are certified to receive reimbursement for Medicaid or Medicare services, the law has served as a de facto industry wide standard. IN addition, some states, such as New York, have adopted the federal law as regulations for all nursing homes.

Several states have enacted statutes commonly known as “nursing home bills of rights” which grant specific rights to nursing home residents and also provide a private right of action (the right to bring a lawsuit) against the home for violations of their rights. However, it is important to know that the standards set forth in the federal law are the minimum, to which every nursing home in the country can (and should) be held accountable. State laws or resident “bill of rights: can only enhance the federal standards.

In general, any person who suffers injury or loss as a result of the failure of a nursing home to exercise proper care in its treatment of a resident may bring an action against the nursing home and recover against the nursing home for such injury or loss. The owner of the nursing home or anyone whose conduct contributed to the resident’s injury (including employees and medical professionals) may be held liable. There are several causes of action—bases for suing—for which a person can bring a claim against a nursing home.

Consumers may be hesitant to seek an attorney’s advice when there is a problem. Fear of retribution is a major impediment in filing a complaint within the nursing home system or in court. Cost is another impediment to filing lawsuits. However, if there is suspicion of abuse or neglect of a nursing home resident, the benefits of filing a suit against the facility may be worthwhile.

LTCCC published a report on legal protections for nursing home residents, including ideas and information on innovative practices that have worked around the country to protect residents. The report and separate resources for attorneys, consumers and ombudsman are available at the LLTCC website at www.nursinghome411.org.

Some of the legal issues discussed:

Negligence—A claim of negligence is a logical cause of action in nursing home cases since it requires a duty; violation of that duty’ proximate cause and damages.

Wrongful death—A claim brought on behalf of the deceased person

Intentional tort—A deliberate act that causes harm to for which the victim may sue the wrongdoer. Examples in a nursing home include sexual assault, assault and battery. In this situation, the nursing home would likely be responsible for the actions of an employee.

Negligent hiring and supervision—An ongoing problem in nursing home cases is that despite specified regulations to the contrary, nursing homes remain understaffed as to all employees and particularly understaffed in the more expensive positions, such as Registered Nurses and LVNs. Nurse aides with poor salaries, too little training and little experience provide almost all of the care. Therefore, negligent hiring and supervisions of personnel is an ongoing problem.
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