It’s becoming difficult to find a family who doesn’t have a parent, grandparent or other family member receiving care in an assisted living or nursing home setting. On top of the housing itself, many families hire a caregiver for whoever is living in the residential facility.
Given the improvements in the facilities themselves, as well as the increases in costs and the numerous options for care that are available in continuing care residence centers (CCRCs), it’s easy to think the quality of care would be improving, and generally good. But that’s not always the case.
You may have known of friends or family who have had experiences with homes that have been painfully unsatisfactory or even downright scary. If your own family becomes victimized by care that does not meet the standards of professionalism required of the industry, what can you do?
Under the law, negligence is determined according to four well known standards:
- the duty of reasonable care,
- breach of that duty,
- proximate cause, and
The duty of a nursing home or assisted living center is defined in most states under statutory laws, but common law principles applicable to service to human beings under one’s care, may also apply depending on the state in which the home resides.
The duty then is breached whenever the care provided falls short of the duty imposed. So, for example, if the standard for the home is to provide reasonable food at reasonable times for all residents, but one resident regularly goes 12 waking hours or more without receiving any food (or drink), the home would pretty clearly have breached its duty of care.
The breach of the duty alone, however, is not enough to make a claim for negligence prevail in court. The Plaintiffs must also show that the breach of duty was the proximate cause of injuries suffered by the Plaintiffs or their family member who is under the home’s care.
If the resident’s blood sugar drops off the charts because he hasn’t been fed, a pretty good case for negligence is in the works. On the other hand, a body rash, head cold or many other injuries – which might be the result of some type of abuse or neglect – are not likely to have resulted as the proximate cause of non-feeding.
Another common example of negligence in a nursing home is a situation where a resident has fallen and suffered a broken bone. Very often this is due to some negligence on the part of the home. But in the question in the cases may center around the possibility of the resident’s contributory negligence in these situations, as much as it does around the negligence of the home.
Abuse cases arise when there is the intent to create the situation that harms the resident, or at a minimum knowledge that the resident is being put at risk by the actions or inactions of the home’s staff. claims of abuse arise frequently in assisted living and nursing home settings, but when private caregivers are employed, they arise under in home settings as well.
In fact, the in home settings can often be the most problematic. For one, there is no secondary staff present most of the time to make sure the primary caregiver is doing what should be done to care for the patient. Also, the standards of accountability the family can place on the caregiver privately may be far less clear than those of a residential facility. Finally, a private caregiver may not have the resources, training or policies in place that a residential facility will have, and thus, the level of care may not be as great.
On the whole, however, abuse cases only arise when someone is actively avoiding providing the care the patient really needs. Abuse never comes about because someone is putting in the effort necessary. Adult protective services may have to be contacted to investigate the situation, and although it is not a prerequisite per se to a legal claim against a caregiver, it may be the only means of getting the type of care needed restored to your family member.
It’s a good idea to create a self-evaluation of the situation before contacting APS as their fist order of business will be to gather evidence and make their own determination about whether the situation rises to the level of the state’s definition of abuse or neglect. Nonetheless, keep in mind that the statutory or regulatory requirements to rise to the level of abuse or neglect tend to be higher than those required for a “tort claim” to recover damages for your loved one. Yet while the requirements to meet the standard of abuse or neglect alone are generally lower under tort law, the requirements imposed before you are able to collect damages from the caregivers may actually be higher.
When a situation is bad enough that you have to consider removing your family member from a care situation, something is not right. At this point, it’s probably wise to have a conversation with an attorney. If you need to discuss your legal rights and options with counsel, please contact Landmark Legal today and schedule a free consultation regarding the situation. The care of your family means too much to let time pass and the care to be unworthy of your love for them.