San Antonio Nursing Home Abuse Lawyer
When a person enters a nursing home or long term facility, one must assume that they will be properly cared for. Most facilities present a positive and enriching environment for their residents. Unfortunately, some older people fall prey to physical and/or psychological abuse under the watch of their caregivers. Some are acts of negligence, while others are deliberate acts of violence. In an institutional setting, this could be due to: inadequately qualified staff members, some with a history of violence, seclusion of residents, and residents unwilling to report the abuse for fear of shame or retribution. Nearly one third of the U.S. nursing homes have been cited for abuse.
Liability Involving Nursing Home Injuries
There are three types of proceedings that may be an option if abuse, neglect or mistreatment is detected.
- An investigation and conclusion by an adult protective services agency
- A civil cause of action/lawsuit for damages
- A criminal prosecution
Each type of proceeding has a distinct intent. The intent of a protective services investigation is to provide immediate assistance to the victim and prevent additional harm. The intent of a civil action/lawsuit is to resolve damages. Finally, criminal prosecution is aimed at penalizing the harmful conduct.
Civil Actions for Nursing Homes
- Negligent personal supervision and care
- Negligent hiring and retention of staff
- Negligent maintenance of the premises
- Negligent selection or maintenance of equipment
Nursing homes may be held liable if the victim can substantiate: 1) the nursing home’s owner or staff breached a duty of care owed to the victim; 2) the person’s injury was caused by the breach; and 3) the nursing home owner’s or staff member’s conduct caused the injury. These apply to negligent actions and they are brought by nursing home visitors and residents.
Proving Duty and Breach of Duty: The litigant suing the nursing home may be required to present expert medical testimony concerning proper practice, treatment or procedure in a particular situation, unless the negligence or lack of skill was unquestionably obvious to others.
Statutory Standard of Care: Several states have enacted statutes or guidelines creating minimum standards of care for private nursing homes. Still, if a nursing home abides by the minimum licensing standards, they may still be accountable for injuries to a resident.
Causation: A preexisting physical or mental condition should never be blamed for any mistreatment or negligence of the nursing home. Oftentimes defendants will argue that it was their preexisting condition and not negligence that caused the injury.
Defense Considerations: The defense of contributory negligence may not be allowed if a resident has placed themselves in a nursing home to be protected from the effects of particular medical conditions.
Breach of Contract
Customarily, the nursing home and resident will sign a contract. A contract may be considered breached if the abuse or neglect conflicts with agreements made by the nursing home or employees.
Criminal Liability
Some states have improved penalties for offenses against the elderly. Failing to provide residents with adequate food, unsanitary conditions can aid in convicting a nursing home. Unwarranted physical restraint against the residents has also brought convictions for abuse.
Bruce Rosenthal, a spokesman for the American Association of Homes and Services for the Aging reported nursing home abuse was on the rise. Homes cited for abuse doubled from 1996 to 2000. The report also discovered that 1 in 10 abuse citations were made in serious incidents that greatly jeopardized residents, or killed them.
Our elderly loved ones are in a vulnerable state and deserve proper care. They should be entitled to adequate supervision and treatment. If a loved one has fallen victim to nursing home abuse, contact me today. Initial consultations are always free and confidential, 210-227-1888.