Nursing Home Liability

Many years ago when my father was in his late eighties and suffering from advanced Parkinson’s disease, my mother confided in her children, myself included, that she was no longer able to care for my dad at home. She asked us for permission to have Dad sent to a nursing home. Neither my brothers nor I felt we had the power to say no to my Mom since we no longer lived at home.

And so began the task that many of my generation are now facing, we searched to find an appropriate nursing home for a parent. However, in our case, the old expression “while man plans God laughs” came to bear. On the first weekend we explored nursing home options, our Dad passed away quietly in his own bed, surrounded by his wife and four sons.

Despite missing my dad and feeling terrible about his death, I felt blessed about the manner of his death. Let’s face it, many people do end up spending months or years in nursing homes. The type of these facilities span a broad spectrum. Some of the ones I have visited resembled exclusive resorts, while others fell far short of those standards.

I am often called by relatives about a family member who has suffered serious personal injury or an untimely death at a nursing home. Those of us who do this sort of litigation know there is a body of federal regulations – the Omnibus Budget Reconciliation Act of 1987 (OBRA) – and substantial case law and literature establishing rules and standards that nursing homes need to follow. While not determinative of liability, these standards help me determine whether the nursing home deviated (breached) standards of care, and proximately caused injury to a loved one.
Some aspects of the standard of care are outlined as follows:

Assessment: Everyone admitted or readmitted to the nursing home must undergo a thorough assessment to identify the resident’s needs and risk factors. That assesment is a document that we will obtain in the discovery phase of the case.

Planning: The assessment’s findings are used to develop a care plan specific to the resident’s needs. Again, after obtaining the assessment we can analyze whether or not the plan specifically was followed. If it was not, our case is strengthened.

Implementation: As with many plans, a plan is only useful if it is communicated to the staff and if the staff follows it. We often find that the plan, while written by administrators and initial social workers, is never communicated or implemented by the “line staff” (i.e., the staff who are involved in the day to day care of your loved one).

Reevaluation: Especially with elders, plans need to change and be reevaluated as medical conditions change. We often discover that some nursing homes sit idly by and never reevaluate patients or change treatment or care plans.

Communication: The staff and administration must be in constant communication with the nursing home resident, his/her physicians and the family, to continually evaluate needs or changing needs.

You might be surprised at the number of times we see that communication in a nursing home facility has not followed these standards of care. If you suspect there is a case of nursing home abuse, give us a call. We take abuse of elders very seriously.