Nursing Home Abuse Lawsuit Guide 2023

by  Christy Bieber, J.D.

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Seniors in nursing homes are entitled to be cared for appropriately by staff members of their care facility. If a caregiver intentionally or negligently harms them, a nursing home abuse lawsuit helps affected seniors or their family members obtain the compensation they deserve.

Despite legislation mandating the quality of care nursing homes must provide and periodic inspections by state agencies to ensure compliance, nursing home abuse continues to be a significant problem in many of the nation’s nursing homes.

This guide helps you understand when you are able to file a nursing home abuse lawsuit, who can be held accountable for the abuse and what types of compensation should be available for losses.

What Is Nursing Home Abuse?

Nursing home abuse occurs whenever a caretaker in a care facility provides inappropriate care. The abuse could be intentional, such as hitting or kicking a senior nursing home resident. Or it could occur as a result of a negligent failure to meet the needs of seniors for whom caregivers have responsibility.

When nursing home abuse occurs, victims or their families have legal rights. A nursing home abuse lawsuit helps those affected by wrongdoing to be “made whole” or recover the compensation they deserve for the damages endured as a result of unlawful abuse or neglect.

How Common Is Nursing Home Abuse?

Nursing home abuse is, tragically, very common in large part due to understaffing, low pay and inadequate training of staff members. Sometimes, it also occurs because care facilities do not properly screened staff before hiring them.

The World Health Organization (WHO) reports that around one out of six seniors 60 or older endure some type of abusive behavior in a community care setting over the course of each year. Sadly, the WHO also indicates that as many as two in three staff members in nursing homes admitted to committing abusive acts over the course of the past 12 months.

What is even more disturbing than the reported frequency of nursing home abuse is that abuse may be occurring and not get reported. A 2017 study by the Office of the Inspector General (OIG) reviewed the emergency room records of 134 Medicare recipients in skilled nursing care facilities whose injuries may have been the result of abuse or neglect. In 28% of the cases, there was no evidence that the incidents leading to emergency room visits were ever reported to law enforcement.

These shocking statistics show that anyone could become a victim of abuse. Those with loved ones in nursing homes must be vigilant about watching for and responding to signs that something is wrong.

Types of Nursing Home Abuse

Nursing home abuse can take many forms, but there are several common categories that abusive behavior tends to fall into. They include physical abuse, financial abuse, sexual abuse, emotional abuse and neglect.

Physical Abuse

Physical abuse in a nursing home setting occurs when a caregiver causes intentional harm. This could involve:

• Hitting
• Pushing
• Kicking
• Burning

Financial Abuse

Financial abuse happens when a caregiver manipulates a senior into giving away money or valuable possessions or when a caregiver takes money or possessions from a resident without authorization or approval.

Sexual Abuse

Sexual abuse involves any unwanted sexual activity with nursing home residents who do not give consent or who cannot give consent due to mental incapacity.

Mental/Emotional Abuse

Emotional and mental abuse is harder to identify because it can involve insulting or demeaning comments, threats, withholding of entitlements and other types of abusive behavior that do not result in observable damage. Name calling or derogatory statements such as suggesting family members don’t love them and won’t be visiting them are other examples of emotional abuse.

Neglect

Finally, neglect involves failing to provide a reasonable level of care for nursing home residents. It is mistreatment without physical force and occurs when nursing home caregivers do not meet a resident’s basic care needs. This includes failing to administer required medications or not moving patients often enough, resulting in the development of bedsores.

Warning Signs of Nursing Home Abuse

Unfortunately, nursing home residents are often unable to speak up about their own abuse. This could be because they are afraid of repercussions or have no one to tell about what they are experiencing. Sometimes, medical conditions such as dementia can also make it difficult for seniors to speak up about what is happening to them.

Family members and other visitors should make sure to watch for warning signs of abuse so they can step in if something is wrong. Some common warning signs of abuse include:

• Bone fractures
• Burns
• Bruises
• Welts
• Bedsores
• Cuts
• Dehydration
• Malnutrition
• Facial injuries
• Sepsis
• Sexually transmitted diseases
• Unexplained weight loss
• Changes in behavior such as no longer participating in activities
• Changes in attitude such as depression or being withdrawn
• Dirty sheets, clothing or floors

Abuse can cause serious mental and emotional damage to vulnerable adults. It can sometimes result in death.

Anyone who suspects nursing home abuse should report it promptly to the appropriate authorities and consider speaking with an experienced attorney about how to help victims pursue a claim for compensation for losses resulting from the wrongful behavior.

Legal Rights of Nursing Home Residents

Nursing homes that receive Medicare or Medicaid payments must comply with federal requirements for resident care. There are over 15,500 nursing homes certified to receive Medicare or Medicaid in the United States, housing more than 1.4 million residents.

In 1987, federal law established a nursing home resident bill of rights as part of a sweeping reform package aimed at improving the quality of care received by nursing home residents in the United States. The Nursing Home Reform Act grants nursing home residents legally enforceable rights establishing a minimum standard of care. Individual states may have added additional requirements to the federal standard.

The federal Nursing Home Bill of Rights states that nursing home residents are entitled to:

• Freedom from abuse, mistreatment and neglect
• Freedom from physical restraints
• Accommodation of medical, physical, psychological and social needs
• Be treated with dignity
• Privacy
• Make their own decisions
• Communicate freely
• Voice grievances without retaliation

Who Can File a Nursing Home Abuse Lawsuit?

Nursing home abuse is unlawful. Those who engage in abusive behavior can face criminal charges. A nursing home abuse lawsuit can also be filed by victims. This is a civil lawsuit, which is separate from a criminal case. The purpose of a civil claim is for victims to be “made whole” for damages they endure. They are entitled to be compensated financially for economic and non-financial losses.

Seniors who have been victimized by abusive or neglectful behavior can file a nursing home abuse lawsuit to recover the monetary damages due to them. If seniors are mentally incapacitated, their representative can file a lawsuit on their behalf.

If the abuse results in wrongful death, the senior’s estate or close surviving family members can pursue a wrongful death claim.

There are two legal bases for imposing liability that nursing home abuse lawsuits may use to support a civil cause of action.

• Breach of Contract – A nursing home and a resident have an agreement where the nursing home agrees to provide a certain level of care in exchange for a fee. When the nursing home does not provide the agreed-upon level of care, a resident may have the right to sue for the failure of the nursing home to do what was promised.
• Violation of Law – Nursing homes must comply with both federal and state laws establishing minimum standards of resident care. Failing to meet the minimum care standard gives nursing home residents the right to sue the facility for any damage caused.

Who Can Be Held Responsible for Nursing Home Abuse?

In many cases, a nursing home lawsuit will be filed against the nursing home that employs the abuser. Nursing homes have insurance and have deeper pockets so are more likely to be able to pay out the compensation for damages.

A nursing home can be held accountable for abuse that staff members commit under a legal doctrine called vicarious liability. Vicarious liability rules make employers responsible for wrongful or negligent acts that workers commit in the course of performing their work duties. This is true regardless of whether the nursing home owners themselves were negligent.

A nursing home can also be held accountable for its own negligence. For example, if the facility was understaffed or staff members were inadequately trained, this provides the grounds for a nursing home abuse lawsuit.

Proving Nursing Home Abuse

Proving nursing home abuse can be difficult because residents may injure themselves or may not be able to communicate exactly what happened and how. Supporting documentation such as medical records, previous complaints, photographs, communications from a resident and noted observations can help prove the mistreatment of a nursing home resident.

One source that can both help prove abuse and prevent it is the use of surveillance cameras in the rooms of nursing home residents. Only a small but growing percentage of US states have laws specifically authorizing nursing home residents to install surveillance cameras in their rooms. The laws must balance the privacy concerns of residents with the desire to monitor the activities within a resident’s living space.

California does not currently have any law giving nursing home residents the right to install surveillance cameras in private areas. But the state’s Department of Social Services has issued guidelines for individual care facilities that choose to install surveillance equipment in the rooms of residents. Surveillance equipment and the recorded footage are legal as long as the guidelines are followed.

In Texas, nursing home residents have the right to install surveillance equipment in their rooms. Each resident must pay for everything but the nursing home is required to make reasonable accommodations to enable the installation.

Statute of Limitations for a Nursing Home Abuse Lawsuit

Nursing home abuse lawsuits are personal injury claims, and state statute of limitations apply to these types of cases. An abuse lawsuit must be filed within the statute of limitations or the claim will be time barred and unable to be brought forward.

The time limit for making a claim varies by state but is usually between two years and four years from the time the abuse occurred or from the time the abuse was discovered or should have been discovered.

It is important to file a nursing home abuse lawsuit in a timely manner when abuse or neglect occurs. The sooner a claim is filed, the easier it is to obtain the necessary evidence of wrongdoing and to get statements from witnesses who may be nearing the end of their lives. However, it’s also important to ensure the full extent of the abuse and resulting injuries are apparent before a claim is resolved.

A nursing home abuse lawyer can help victims and their loved ones to gather evidence and move forward at an appropriate time in pursuing a claim for damages.

Compensation for Nursing Home Abuse

If a nursing home abuse lawsuit is successful, the victim could recover compensation for:

• Medical bills
• Loss of money or income, if applicable
• Pain and suffering the victim experiences as a result of the abuse
• Emotional distress resulting from the abusive behavior

If the abuse resulted in a fatality, surviving family members or the estate of the deceased senior can bring a wrongful death claim. This could result in compensation for medical bills incurred before death, pain and suffering, financial losses, emotional distress and lost companionship of the victim.

An elder abuse lawyer can provide help in filing a nursing home abuse lawsuit, gathering evidence and showing the extent of damages in order to maximize financial recovery in these troubling cases.

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Nursing Home Abuse Lawsuit Guide 2023