Nursing home abuse and neglect is a nationwide problem and, unfortunately, the situation isn’t any better in New York than it is anywhere else. A 2011 study at Cornell University estimated that, in New York alone, over a quarter of a million elderly people have been subject to some form of abuse, whether inside or outside of a nursing home, and that less than five percent of these cases have been referred to the authorities.
There is a fine line between abuse and neglect, of course. If a resident is left immobile long enough to develop bedsores, for example, does that count as abuse or neglect? Ultimately, it doesn’t matter. Either way, it is abuse, and one of the main causes of nursing home abuse is understaffing.
The Understaffing Problem
By some standards, well over 90 percent of New York nursing homes are understaffed. And the nursing homes with the worst records of abuse and neglect are the ones that typically suffer from the worst understaffing problems. There is more than one reason why so many nursing homes are seriously understaffed, including:
- The burgeoning population of elderly people as a consequence of the aging of the Baby Boom generation.
- The profit motive. Private nursing homes in particular are quite sensitive to the bottom line, and some private nursing homes cut staff to the bone in order to reduce costs and maximize profit. Even public nursing homes have budgets to meet. Obviously, this state of affairs can result in substandard nursing home care.
- High turnover rates due to the stress of working in a nursing home.
- Overtime pay: Due to well-intentioned employment laws, it is more lucrative to work overtime than to work your first 40 hours in a given week. This reality encourages some nursing home employees to frequently volunteer for overtime, thereby relieving the nursing home of the need to hire additional staff. Naturally, fatigued employees tend to provide substandard care.
Consequences of Understaffing
Some of the most common effects of nursing home understaffing include:
- Long waiting periods to be taken to the bathroom, have diapers changed, or receive feeding assistance;
- Overstressed staff who are more likely to commit overt acts of abuse such as physical or verbal abuse;
- Failure to provide personal care and hygiene;
- Development of bedsores (decubitus ulcers) because overworked staff rarely changes the body position of an immobile resident;
- Failure to provide necessary medical care or medication;
- Development of serious infections (from bedsores, for example);
- Slip and fall accidents arising from inadequate supervision;
- Dehydration and malnutrition; and
- Lack of social interaction.
Understaffing and Sexual Abuse
Sexual abuse of nursing home residents is more common than is generally understood. Two ways that understaffing can contribute to sexual abuse are:
- Lack of adequate security. Nursing home sexual abuse is sometimes perpretrated by outsiders who sneak into the facility.
- Lower hiring standards due to a shortage of staff, which is often caused by low pay. Lower hiring standards make it easier for people to get jobs at nursing homes who should never be allowed to work there, who might have been accused of sexual abuse in the past, and who might go on to commit further abuse.
Warning Signs of Nursing Home Abuse
The following is a short list of only a few of the more well-known signs of nursing home abuse. If you observe any of these, it should put you on notice to investigate further.
- Sudden injuries such as broken bones, sprained joints, bruises, burns or swelling;
- The development of a sexually transmitted disease (STD);
- Sudden and unexplained changes in mood or behavior;
- Staff refusal to allow visits from friends or family;
- Deteriorating personal hygiene;
- Unexplained weight loss;
- Dirty living space or soiled bedding; or
New York authorities accept complaints about any incidents of nursing home abuse that occurred within a year before the filing of the complaint. To report nursing home abuse to the New York State Department of Health, Division of Nursing Home and ICF/IID Surveillance, complete the Nursing Home Complaint Form, print it out, and then mail it to:
New York State Department of Health DRS/SNHCP
Empire State Plaza
Albany, NY 12237
You can also fax the form to 518-408-1157, or scan it and email it to firstname.lastname@example.org. If you need immediate attention, you can also call the nursing home complaint hotline at 1-888-201-4563.
Personal Injury Claims
Once you have taken steps to get the abuse stopped, it is time to seek fair compensation on behalf of your loved one. Personal injury claims against nursing homes are generally characterized as negligence claims, although some incidents are rightfully characterized as intentional torts.
Violation of a Nursing Home Regulation
New York nursing homes are regulated at both the state and federal level. Under New York law, violation of a regulation is not considered automatic negligence, but merely evidence of negligence (violation of a statute, on the other hand, is considered automatic negligence). What this means is that even if you prove that the defendant violated a regulation, he can still argue that the violation was not serious enough to constitute negligence.
If the defendant loses this argument because the court agrees that the defendant’s regulatory violation was serious enough to constitute negligence, all you will have left to prove to establish liability is to show (i) the negligence actually caused the injury suffered by your loved one, and (ii) your loved one suffered damages thereby.
Ordinary Negligence and Intentional Acts
Nursing home staff are charged with the duty of properly caring for your loved one. If they fail to perform that duty, either by acting inappropriately or by failing to take the actions necessary to perform their duties, a court can find negligence or even intentional misconduct, even if it cannot point to a specific violation of nursing home regulations. A nursing home can be found vicariously liable for both negligent and intentional misconduct by its employees.
Personal Injury Compensatory Damages
Damages for a nursing home personal injury claim can include:
- Medical expenses arising from the abuse;
- Physical pain and suffering arising from the abuse;
- Emotional trauma arising from the abuse;
- Bodily injury arising from the abuse; and
- Punitive damages.
Lost earnings are available in many personal injury claims but are not generally available in nursing home abuse claims. This is because very few nursing home residents are either employed or expect to work in the future.
Wrongful Death Claims
If your loved one died as a result of nursing home abuse, his or her personal injury claim becomes a wrongful death claim, which can be filed by the probate estate. The personal representative of the probate estate, typically a close relative, can file a wrongful death lawsuit on behalf of the estate for eventual distribution to the beneficiaries.
Wrongful Death Compensatory Damages
A wrongful death claim arising from nursing home abuse can seek the following types of compensation:
- Funeral and burial expenses
- Health care expenses that arose from the nursing home abuse;
- Pain and suffering endured by your loved one prior to death; and
- Interest on the award from the date of death to the date of actual payment.
Certain other types of damages such as lost earnings, lost inheritance, and loss of financial support provided to offspring, typically does not apply to nursing home residents.
Punitive damages are awarded, if at all, in addition to the ordinary compensatory damages described above. They can be awarded in either personal injury or wrongful death cases. Although punitive damages are relatively uncommon, they are more likely to be awarded in a nursing home abuse case than in other types of cases due to the moral repugnancy of nursing home abuse in the minds of jurors.
Although cases of active abuse are more likely candidates for punitive damages than cases of passive neglect, cases of severe neglect can certainly qualify for punitive damages. A general rule of thumb is that the amount of punitive damages may not exceed ten times the amount of compensatory damages.
The Statute of Limitations
Generally speaking, a nursing home abuse lawsuit must be filed within three years of the abuse complained of. Certain exceptions exist, however: If the abuse was a recurring phenomenon, for example, the three-year period might not start to run until the last act of abuse occurred. A wrongful death lawsuit must usually be filed within two years of the date of death of your loved one.
Consult with your lawyer on this matter. Exact statute of limitation deadlines are very fact-dependent when it comes to nursing home abuse lawsuits.
The majority of nursing home abuse claims are settled out of court without a trial, because defendants fear runaway juries whose sympathies may lead them to issue extremely high damages awards. If the statute of limitations deadline is looming, however, your best bet is to go ahead and file a lawsuit and continue negotiating while awaiting a trial date. You can always withdraw the lawsuit if you reach an acceptable settlement.
Take Action Now to Protect Your Loved One
If you suspect that your loved one has fallen victim to nursing home abuse or neglect, don’t wait until your suspicions mature into absolute certainty. An experienced nursing home abuse attorney knows the telltale signs of nursing home abuse and can help you investigate and confirm your suspicions. This is so that the abuse can be halted immediately and you can begin preparing a compensation claim.
Contact E. Stewart Jones Hacker Murphy by calling our Albany office at (518) 730-7270 or by contacting us online to schedule a free case consultation. We also maintain offices in Troy, Saratoga, and Schenectady.