Nursing Home Abuse and Neglect
Elder abuse is problem that continues to plague the aged population principally by family, friends, neighbors, and caregivers. A special type of elder abuse is the rampant mistreatment of the aged population living in nursing homes.
Nursing home abuse and neglect has become an epidemic throughout the country. The problem is so bad that Michigan has passed fifteen laws affecting nursing homes and the care they give their patients since 2012.
Most of us have heard about news accounts of criminal assaults occurring within nursing homes. The problems in nursing homes are far more rampant than just criminal assaults. Nursing home abuse and neglect includes inappropriate treatment for Alzheimer’s, sexual abuse, physical, sexual, and emotional abuse, and medical malpractice. The abuse suffered by residents of nursing homes can be extensive in terms of personal and financial costs. The challenges for families is how to manage the myriad of problems associated with nursing home abuse.
This article addresses what a person, or family of a loved one, can do to put an end to or receive compensation for nursing home abuse and neglect.
What can to do if I suspect abuse or neglect
If you or a loved one are suffering from nursing home neglect or abuse, then of course you want it to stop as soon as possible. There are several government agencies you can call to report suspected abuse:
The Department of Human Services and Adult Protective Services at michigan.gov/dhs
The Bureau of Health Services Abuse Hotline at 1-800-882-6006
The Michigan Protection and Advocacy Services at 1-800-288-5923
The Attorney General’s 24-Hour Health Care Fraud Hotline at 1-800-24-ABUSE
The state’s 24-hour nursing home abuse hotline at 1-855-444-3911
Generally, these agencies will investigate reports of suspected abuse within 48 hours. Each of these agencies have administrative powers that can include removing the person from the abusive nursing home or closing the nursing home in extreme cases. If you or a loved one are being abused, then call to report the abuse.
Two Common Types of Cases
If you or a loved one have been the victim of nursing home abuse or neglect, then you may be able to file a personal lawsuit to recover for your injuries and damages. Generally, there are two types of lawsuits an injured person can file against a nursing home: 1) ordinary negligence and 2) medical malpractice. The difference between ordinary negligence and medical malpractice is whether or not the nursing home was providing a professional service. In the case of ordinary negligence, the nursing home must not breach a duty it has to its resident for a common, non-professional, activity. By contrast, a successful lawsuit against a nursing home for medical malpractice would require proof that it had breached some professional duty to its’ resident. For example, a breach of duty by the nursing home that fails to properly mop a floor would fall under the doctrine of ordinary negligence. A breach of duty by the nursing home in how it administered a shot would fit under the umbrella for medical malpractice.
The distinction between ordinary negligence and medical malpractice is important because they have different procedures to be followed when filing a complaint. For example, to file an ordinary negligence complaint there are no prerequisites. However, by statute a person claiming medical malpractice must first serve the health care provider, i.e. nursing home, with a Notice of Intent (NOI) 182 days prior to filing a complaint. MCL § 600.2912b. (The requirements of a Notice of Intent and a more detailed explanation of Medical Malpractice can be found on our Medical Malpractice page).
Anytime a person suffers an injury, including the victims of nursing home abuse and neglect, he or she files a lawsuit to obtain reimbursement for his or her losses. Generally, damages are divided into two categories: 1) economic and 2) non-economic. “Economic” damages represent the medical bills, living expenses, lost wages, and funeral expenses incurred by an injured person. “Non-economic” damages are primarily pain and suffering a person suffers as a result of their injuries.
In the case of the death of a family member, the law allows the family to recover these same damages. For nursing home abuse and neglect, an injured person or the survivor’s family can sue for both economic and non-economic damages.
In some of the more egregious cases, the victim of nursing home abuse suffers an injury as a direct result of an intentional act of a caregiver. For example, when a nursing home worker assaults a resident this is considered an “intentional act” or an “intentional tort”.
The legal impact of intentional acts can drive damages up but may give nursing homes a defense to the underlying liability. Under the doctrine of respondeat superior the employer is liable for the acts of his employee when the employee is acting within the apparent scope of his authority. McCann v. State, Dep't of Mental Health, 398 Mich. 65, 70; 247 N.W.2d 521 (1976). Thus, the defense for the nursing home being sued is that their employee acted beyond the scope of his employment. For example, when a patient care attendant assaults a nursing home resident, the nursing home posits that the attendant was acting beyond the scope of his or her authority. If the nursing home is correct that the patient care attendant exceeded his or her authority, then the nursing home would have no liability. The question of whether or not a nursing home employee was acting within the scope of his or her authority is one of fact—meaning the jury would be the one to decide.
Are you discouraged by the limitations of liability of nursing homes because of intentional acts? Don’t be! There are a number of ways to combat the limiting affect of intentional acts. In some cases negligent hiring of the employee by the nursing home can be used by an injured person to maneuver past the intentional act exception. There may other strategies you can use to successfully defeat the intentional act exception.
What to do next
If you, your friend, or family member has been the victim of a personal injury within a nursing home, then you may have an action for nursing home abuse and/or neglect. As you can tell, a nursing home abuse and/or neglect case can be complicated. We invite you to contact Arnold E. Reed & Associates, P.C., to discuss your situation.