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When Should I Consider a Claim for Nursing Home Neglect?
According
to the U.S. House of Representatives, Committee on Government
Reform, there are nearly 17,000 nursing homes in the United
States that currently care for 1.6 million residents. That
figure is projected to quadruple to 6.6 million by the year
2050.
According to the 2000 survey of State Adult Protective Services,
a study commissioned by the National Center on Elder Abuse,
Adult Protective Services (APS) investigated 396,398 reports
of elder abuse in this country. Of that number, APS
substantiated 166,019 in the year 2000 alone.
Importantly, these studies have focused on abuse in domestic
settings and not specifically in nursing homes. However, it
is widely agreed and accepted that abuse and neglect is a
common and grossly underreported occurrence in nursing homes.
In fact, in a 1990 study, confidential interviews were conducted
of 577 nurses and aides which revealed that 10% of the respondents
themselves had engaged in nursing home physical abuse in the
past year, and 40% had engaged in mental or psychological
abuse in the past year. 81% of those interviewed had witnessed
at least one instance of psychological abuse in the past year.
A 1997, Time Magazine article projected that as many as 35,000
Americans suffer death or unnecessary pain in nursing homes
each year.
These staggering statistics demonstrate that nursing home
neglect is a serious problem in this country. Where can people
turn for help? If the suspected abuse is immediate and life
threatening, call 911 immediately. If the danger is not immediate,
most states have adult protective service organizations which
regularly receive such reports.The Eldercare Locator has a
hotline at 1-800-677-1116, which can also provide assistance
in reporting elder abuse.
Many people who report or experience elder abuse also want
to pursue a civil legal action for monetary damages against
the nursing home. However, several considerations should be
taken into account before instituting such an action.
One consideration is the law of the state in which the nursing
home abuse occurred. Some states have laws more lenient or
less punishing than others. Some states, like Louisiana, do
not allow an injured victim to recover punitive damages for
nursing home neglect. Punitive damages are designed to punish
the offending institution and deter future conduct. These
type of damages frequently reach a million dollars, depending
on the nature and extent of the abuse.
If the abuse occurred in a state without punitive damages,
you may want to limit your action to the criminal reporting
or reporting to governmental agencies. A lawsuit in such a
state would limit damages to pain and suffering and out of
pocket expenses. Given the high cost of pursing these cases
with expert witnesses, it may not make economic sense to pursue
a civil remedy in these states unless a physical injury caused
a permanent disability.
Other states, like Texas, allow an injured victim to recover
punitive damages. In these states, the nature and extent of
the abuse will play a major role in determining whether to
pursue a remedy in court. Also, documentation and/or verification
of the abuse by a state agency will go a long way in helping
provide the proof required to prevail in a lawsuit.
Testimony from independent witnesses is also important to
establish. Jurors will be more likely to believe witnesses
who do not stand to gain financially if a verdict is rendered
for the victim or his family. However, this type of proof
is not easy to obtain since most abusing health care providers
do not openly abuse residents in front of witnesses.
Another factor to consider is the severity of the injuries.
Does the victim now suffer from a permanent physicial disability
as a result of the abuse? If the abuse is mental, does the
victim require extensive therapy to address the issues raised
by the abuse?
Finally, the financial stability of the offending nursing
home may also be a consideration. Many nursing homes have
gone bankrupt and have no insurance to respond to a judgment
for damages. In such instances, a civil legal remedy may not
be worth pursing.
If you suspect abuse of a friend or relative in a nursing
home and you are considering a lawsuit, you should contact
an experienced lawyer who handles these types of cases. These
cases are too difficult and expensive to allow representation
an attorney with little or no experience with these claims.
The Cochran Firm - Dallas, L.L.P.
Turtle Creek Centre, Suite 1400
3811 Turtle Creek Boulevard
Dallas, Texas
75219
phone:
214.651.4260
| fax: 214.651.4261
Edward H. Moore is Board Certified, Personal Injury Trial Law. Unless otherwise noted, not certified by the Texas Board of Legal Specialization.
The statements and information provided on this web site are for the information of the recipient only. This site is not intended to provide legal advice and no attorney-client relationship should be deemed to arise from the receipt this page and its associated pages. |
Copyright © 2003 The Cochran Firm - Dallas, L.L.P.,
All Rights Reserved.
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