How do you prove a nursing home gave bad care?
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UPDATED: Jan 28, 2009
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While many defendants try to deny liability for their actions, or blame the other party, this is particularly likely when an injury occurs in a nursing home.
It is very important to start to gather the facts as soon as an injury occurs, as you are unlikely to get much cooperation from the senior management of the nursing home. People also start to change their stories if they fear being involved in a lawsuit or investigation.
Because of the vulnerability of their residents, widespread patterns of abuse, and the fact that Federal tax dollars are used to pay for a large percentage of nursing home stays, the nursing home industry is very heavily regulated. Federal law requires that nursing homes have to:
(1) Develop comprehensive care plans for each resident;
(2) Conduct an initial assessment of each resident’s functional capacity;
(3) Update the assessment periodically;
(4) Prevent the deterioration of each resident’s ability to bathe, dress, groom, transfer, ambulate, toilet, eat, and talk or otherwise communicate;
(5) Avoid bed sores and treat those that develop;
(6) Have sufficient nursing staff to maintain the highest practical level of physical, mental, and psycho-social well-being; and
(7) Ensure adequate nutrition.
Many states have their own laws that impose additional requirements.
One of the first places to start when there is a problem with adequate care is with the patient’s chart. Ask for a copy immediately and try to get it while you are there. If the home receives Federal funds, it must provide the records within 2 days, but getting it immediately lessens the chances that it will be “altered.” Cases are legion where staff members at the nursing home, fearing they might be criticized, or there might be litigation, make changes in the chart to exonerate themselves. If you can get a copy of the chart right away, the likelihood of that is lessened.
Witnesses to abuse may be guilt-ridden that they allowed a loved one to go to a place that treated them so poorly. These witnesses may be family members of the injured person or family members of other residents in the home. These people probably spoke to staff members, and they may have been told what the staff member saw or did. A sympathetic staff member may have confided in them what she saw or what another staff member said had happened. These witnesses should immediately be asked to write down what they were told, by whom, and when, before their memories start to fade.
Similarly, the injured person should be asked to state his version of what happened and what was done about it. Who said what to him or her?
Photos of the actual injuries, and of the place where the accident occurred, should be taken right away, before the injury starts to heal or the home makes changes that it should have made much earlier, and that might have prevented the accident or injury.
Former nursing home employees, or temporary staff, may be able to assist you, and their interests are less intertwined with those of the management of the home. They can be a goldmine of information. Even if they were not there to see the particular incident, they know how the patient had been treated (or neglected) and what really happens in the home when visitors are not there. They can share other stories of similar incidents that may help demonstrate a pattern of carelessness or abuse.
Much of the lawyer’s assessment of the merits of the case will be based on the history of violations by the particular nursing home, and if it is (like most) part of a national or regional chain, that of its parent company and affiliates.