Nursing Home Abuse Lawsuit

Nursing home abuse and neglect are forms of medical malpractice. Patients have a right to expect to receive a reasonable standard of care while residing in nursing homes. Nursing homes that fail to meet these standards are liable. Litigation against nursing homes is a challenging but effective way to hold nursing homes accountable.

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Who can file a nursing home lawsuit?

Lawsuits are generally filed by those who have experienced harm. Nursing home lawsuits can be complex with regards to who can file suit and how the proceeds are distributed.

Living Nursing Home Residents

If your family member is still living, it is up to him or her to file the lawsuit, provided he or she has the mental capacity to do so. If the resident is of sound mind, a lawyer can represent them in court, even if a disability prevents the resident from physically appearing in court.

If the resident is legally incompetent, other individuals specifically designated to act in the best interests of the resident could file a lawsuit on the resident’s behalf. These include the following:

A durable power of attorney
- Also known as an attorney-in-fact
- An individual pre-designated by the resident while in a sound state of mind to manage
their personal affairs if they become incapacitated
A trustee designated by a living will or trust
A court-appointed conservator
- A guardian appointed by the court

It is important to note that an elderly adult who has not been declared legally incompetent cannot be compelled to file a lawsuit.

State laws also limit the time patients have to file claims, typically to a period of one to three years from the last instance of abuse or neglect, or in some states, from the time the injury is discovered.

Wrongful Death Lawsuit

If your family member dies as a result of abuse or neglect in a nursing home, your family may be eligible to file a wrongful death lawsuit on behalf of the estate of the resident. State laws vary in terms of who can file.

In some states, the personal representative or executor of the estate must file, and in other states, the immediate family members may file. Depending on state law, these can include surviving spouses, children, parents, siblings and other relatives. Each state also imposes a statute of limitations on wrongful death lawsuits, which typically range from one to three years.

The Lawsuit Proceeds

The distribution of proceeds in a nursing home lawsuit can be confusing. If the resident is still living, the proceeds are generally awarded to the resident, although family members may be able to recoup related costs, such as the cost of relocating the resident. In wrongful death cases, proceeds are awarded to the estate and distributed to family members as specified by state law.

Medicare and Medicaid

If any portion of the resident’s nursing home care is paid by Medicare or Medicaid, these public entities may be legally entitled to receive reimbursement for any amounts they paid for nursing home care. They will generally place a lien on the lawsuit proceeds or on the estate, ensuring monies are paid to them first.

Since Medicaid is a needs-based program, receipt of a lump sum could impact the patient’s eligibility. When selecting an attorney in a nursing home lawsuit, it is important to consider the attorney’s experience with nursing home cases to ensure the attorney understands what can happen with the proceeds and how to ensure the resident and family benefit from the lawsuit.

What do I have to prove in a nursing home lawsuit?

Nursing home abuse, neglect and abandonment are types of medical malpractice. In medical malpractice cases, a patient must prove the following against a health care provider, or in this case, the nursing home:

The nursing home had a duty of care.
The patient was, in fact, a patient at the nursing home.
The nursing home breached the duty of care.
The patient has evidence that the abuse, neglect or abandonment occurred:
- Documents
- Medical records
- Photos
- Video or audio recordings
- Witness statements
- Police reports
A physical, psychological or financial injury occurred.
- The patient has evidence that injuries occurred that would not have occurred were it not for the
  - abuse, neglect or abandonment:
  - Medical records
  - Expert witnesses
  - Photos of injuries
  - Statements by witnesses who saw the injuries
  - Financial records in case of financial exploitation
The breach of duty is the proximate cause of the injury.
- The patient can show that there was no other cause for the injuries.

An experienced nursing home attorney can help you gather the required evidence and advise you on what is needed for your specific case.

What types of compensation are available in a nursing home lawsuit?

Compensation in a nursing home lawsuit can include the following:

Economic damages – Financial losses as a result of the abuse or neglect

Reimbursement for funds illegally taken through financial abuse
Lost wages of family members who had to provide care or take other actions as a result of the
abuse or neglect
Property damage
Funeral and burial costs
Medical expenses

Non-economic damages – Subjective losses

Pain and suffering
Emotional distress
Mental anguish
Loss of society
Loss of companionship

Punitive damages – Damages awarded as a punishment and deterrent against the nursing home for deliberate, malicious, fraudulent or grossly negligent conduct

Are there any legal barriers to filing a lawsuit?

Nursing homes go to great lengths to shield themselves from liability. One common measure nursing homes utilize to avoid or limit liability is binding arbitration agreements, which are most often included in admissions contracts.

What is binding arbitration?

Binding arbitration is a dispute resolution process where the respective parties present their cases to an arbitrator rather than a judge. Disputes that are settled in arbitration are legally binding as if they were heard in court. Participation in the arbitration process precludes both parties from taking the case to court.

Can nursing homes require residents to sign a binding arbitration agreement?

Nursing homes have historically required residents to agree to binding arbitration as a condition of admission, but in 2019, the Centers for Medicare & Medicaid Services (CMS) issued a final rule restricting the practice as follows:

Nursing homes are prohibited from requiring patients to sign arbitration agreements as a condition of admission or continuation of care.
Nursing homes must protect the informed consent of patients by ensuring they or their representatives understand the arbitration agreement and the consequences of signing.
Facilities must maintain arbitration records for five years and make the documents available to CMS upon request.

Several nursing homes have sought to have this final rule overturned in court so they can continue forcing residents to sign away their rights to have their cases heard in a court of law. The Eighth Circuit has upheld the rule, and the nursing homes have appealed to the U.S. Supreme Court.

How are arbitration agreements unfair to nursing home residents?

Arbitration agreements were originally used in business contracts to provide both parties with a faster, less expensive means to resolve disputes. In this context, binding arbitration is beneficial to all parties involved. When nursing homes use arbitration, the nursing home benefits while the resident loses rights and protections:

The nursing home selects the arbitration panel.
Filing fees are much higher, making the dispute process out of reach for low-income residents.
Proceedings and decisions are confidential, eliminating public accountability.
Arbitration companies are unregulated.
Nursing homes pay less when disputes are handled through arbitration and avoid full accountability.
Arbitration decisions are final, with no right to appeal.

Although nursing homes are prohibited from forcing residents to sign, staff may pressure residents into signing when family members are not present. It is important when completing the admissions paperwork to have your family member cross out this section of the contract.

It is important to stay in touch with your family member and ensure staff does not deceive the patient to sign outside of your presence. If this does occur, the patient has a 30-day right to rescission.

Are binding arbitration agreements enforceable?

Binding arbitration agreements are enforceable when both parties sign the agreement without coercion while of sound mind. The agreement may not be enforceable under the following circumstances:

The patient signed under duress or felt coerced to sign.
The patient was not legally competent or was not in his or her right mind at the time.
The patient did not understand what he or she was signing.
It was signed by someone who was not qualified to sign.

If your family member is experiencing abuse but signed an arbitration agreement, an experienced nursing home attorney may still be able to help.

Who is liable in nursing home abuse and neglect cases?

As with all medical malpractice cases, the following parties may be liable for nursing home abuse and neglect:

Doctors

Nurses

Pharmacists

Therapists

Caregivers

CNAs

The facility itself

What if the perpetrator is someone other than nursing home staff?

Whether the perpetrator is a family member, visitor or other resident, nursing homes have a duty to protect patients and notify family members of incidents. Any failure of the nursing home to perform its duties to the patient qualifies as a breach of duty.

Can I still file a lawsuit if the abuser is criminally prosecuted?

Criminal cases are separate from civil cases. A successful criminal prosecution against nursing home staff may bolster the civil case against the staff members and the nursing home.

How can a nursing home lawyer help me with my nursing home abuse or neglect lawsuit?

Medical malpractice lawsuits against nursing homes are complex. Many nursing homes are large companies that resort to all manner of legal maneuvers to escape liability. An experienced nursing home attorney will be prepared to thwart these efforts.

Most importantly, a nursing home attorney can serve as a voice for your vulnerable family member who cannot self-advocate. Our experienced nursing home attorneys are dedicated to holding nursing homes accountable one patient at a time, as many cases as it takes, until nursing homes realize the cost of accountability is higher than the cost of providing residents with the quality care they need and deserve.

If you or your family member has been harmed by a nursing home, you have a limited amount of time to act. Contact us today to schedule a free consultation.

Medically Reviewed by:

Dr. Patricia Shelton, MD

Education:

University of Washington, Doctor of Medicine – MD. June 2008
University of Washington, Bachelor of Science – BS, Jun 2003

Background:

Neuroscience and Medicine

Career:

Dr. Shelton primarily writes content for health-related websites, but has also written test prep materials, white papers, published research articles, court documents, and more.
Dr. Shelton teaches anatomy and physiology at the college level for the National Institutes of Health.

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