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Articles Tagged with neglect

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By Jessica Surber, Attorney

English, Lucas, Priest & Owsley, LLP

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Our firm routinely handles nursing home abuse, neglect and wrongful death cases. We see families every day who have trusted their loved ones to assisted living facilities or nursing homes but have found that the care was not up to basic standards.

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By Jessica Surber, Attorney
English, Lucas, Priest and Owsley, LLP

News stories about abuse and neglect in nursing homes are become more and more common – as are civil lawsuits and criminal prosecutions involving nursing homes and nursing home employees.

Recently, a high-profile national news organization investigated the topic, paying particular attention to the topic of sexual assault of the frail and elderly who typically populate assisted living centers, long-term care facilities, and nursing homes.

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patient roomLawsuits arising in the context of nursing home death, abuse or neglect can sometimes involve multiple parties and several legal theories of liability. The various issues between the parties may be settled prior to trial by agreement, by the trial court through summary judgment, or at trial between the remaining parties.

A recent case from a nearby state illustrates some of the procedural hurdles that can arise when a nursing home patient is allegedly a victim of both nursing home neglect and medical malpractice by a physician practicing geriatric medicine.

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dismissedIt cannot be stressed often enough or strongly enough: the failure to file a lawsuit within the time allowed by the statute of limitations almost always means the case will be dismissed. While there are a few limited exceptions, most cases must be filed within the limitation period, or else there can be no recovery regardless of the egregiousness of the would-be defendant’s conduct.

This is true in every type of personal injury case, from a car accident to a medical malpractice case to a nursing home negligence case. Earlier this year, the Kentucky Court of Appeals released an unpublished opinion stressing the importance of complying with the Kentucky statute of limitations in nursing home negligence cases.

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bed 3Everyone knows that nursing home residents are frail and vulnerable, but many people do not know what to do if they suspect that a loved one is being abused or neglected while in a nursing facility. The law protects nursing home residents by providing a way for such residents, or a family member acting on a resident’s behalf, to seek monetary compensation and even punitive damages in a court of law.

While such suits may come too late to help a resident who died as a result of poor care, such lawsuits can help prevent future misconduct against other patients. Recently, a Kentucky jury sent a strong message against nursing home abuse by returning a large verdict against a care facility in a nursing home death case.

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bed 3Violations of health and safety codes must be severe for a state agency to take the action it did in the case of Hurstbourne Care Centre at Stony Brook in Louisville. The facility’s most recent inspection, conducted in May, found many problems, and authorities delivered a 711-page report to the Kentucky nursing home in June citing the numerous issues with the facility. The report was also sent to federal authorities, who revoked the nursing home’s ability to accept Medicare payments. In news reports, facility representatives said they were unsure if the nursing home would remain open.

The issues with the facility are severe, and some put the lives and well-being of the nursing home residents in jeopardy.

Among the problems cited:

  • Resident had ants crawling all over her and her bed, and had to cry out for help.
  • Resident was found on the floor in the middle of the night and no record could be found of offering any medical help to the resident. The resident was X-rayed and a fracture was found the next afternoon – nearly 16 hours after they were found on the floor.
  • Resident had a large bruise, and no records could be found that anyone had examined the resident or that the resident had received any kind of care for the bruise.
  • In February, a doctor ordered that a patient be weighed and nutrition monitored, due to the patient being underweight. In March, no record could be found of either occurring, and the patient had lost another 9 percent body weight.
  • Call buttons for several residents were not operational

There were many other problems cited by inspectors. You can read the full report here.

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jail2If you have a parent, spouse, or other family member who resides in a Kentucky nursing home, it is probably your worst fear that your vulnerable and helpless loved one will be abused at the hands of a caregiver. While outright abuse is less common than neglect, it does happen. Nursing home abuse can be physical, verbal, or sexual in nature. The family of a patient who suffers abuse, neglect, or other mistreatment has a right to pursue damages in a court of law. Such a case proceeds under a theory of negligence in civil court.

When a caregiver’s mistreatment of a resident rises above mere negligence and becomes criminal in nature, there may also be proceedings in criminal court against the wrongdoer. Criminal actions are punitive in nature and are not designed to compensate the victim of the crime, although in some cases some restitution may be ordered. While a family may file a complaint with the police department concerning alleged criminal conduct, it is ultimately up to the prosecuting attorney as to whether there will be a prosecution.

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Stethoscope 3In an unpublished opinion, the Kentucky Court of Appeals has found that a nursing home negligence dispute is subject to arbitration. In this case, a woman executed a general power of attorney naming her nephew as her attorney-in-fact in 2005. Approximately one year later, the woman went to live in a Danville nursing home. As part of the admission process, the woman’s nephew signed a number of documents, including an optional agreement to arbitrate any future disputes with the skilled nursing facility. More than two years later, the woman passed away, and her nephew was named the executor of her estate. The nephew then filed a negligence lawsuit against the nursing home in Boyle County Circuit Court.

In response to the lawsuit, the nursing home filed a motion to compel arbitration based on the paperwork the woman’s nephew signed at the time of her admission to the Danville facility. The trial court denied the company’s motion, based on lack of jurisdiction under the Kentucky Uniform Arbitration Act or the Federal Arbitration Act. The facility then filed an appeal with the Kentucky Court of Appeals.

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hospital bed2Nursing home residents who are unable to change their sitting or lying position on their own are at particular risk for an injury known as a “bedsore.” Because of these residents’ confinement to a wheelchair or bed, they must rely on caregivers to reposition their bodies frequently. If this does not happen, bedsores can damage a resident’s skin and the tissue beneath it, particularly the bonier areas of the body such as the shoulder blades, hips, tailbone, and ankles.

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1277878_check_list sxchu username FanginhoonUnfortunately, nursing homes often place the most vulnerable members of our society at risk in their haste to turn a profit. Despite federal guidelines, elderly patients who reside in skilled nursing facilities regularly suffer abuse or neglect at the hands of the individuals who are tasked with their care. In many cases, chronic understaffing results in resident harm.

Common signs of senior citizen abuse include pressure ulcers which are more commonly known as bed sores, serious or frequent falls, combativeness, broken bones, weight loss, and more. For example, pressure ulcers can occur when a nursing home patient is not fed properly or moved at regular intervals. Similarly, overworked staff may be stretched too thin to care for residents’ needs and protect residents from dangers such as falling. In order to prevent dangerous falls, facility residents may simply need additional restroom breaks or senors, alarms or rails installed near their beds.

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