Basics of Nursing Home Negligence

About Elder Care Facilities

Nursing homes and assisted living facilities fall under the umbrella term of long-term care facilities, but there are important differences between them.

Assisted living facilities tend to provide more of a home-like environment and focus more on supervision and assistance with activities of daily living and less on 24-hour skilled nursing care. There are three main categories of assisted living facilities in Wisconsin–Adult Family Homes, Community-Based Living Facilities, and Residential Care Apartment Complexes.

Nursing homes typically provide 24-hour skilled nursing care because residents are often no longer capable of conducting activities of daily living on their own. Nursing homes also provide various forms of rehabilitation such as physical therapy, occupational therapy, and speech therapy along with constant supervision.

How Can I Find Information About a Nursing Home’s Track Record?

In Wisconsin, nursing homes and other long-term care facilities are regulated by the Department of Health Services (DHS)–Division of Quality Assurance (DQA). Every year the DQA produces a Consumer Information Report for each nursing home facility in the state. The report contains information for current and prospective residents about the quality of care provided by a facility.

The same Division also conducts on-site compliance surveys of nursing homes and will launch an investigation if they receive complaints of abuse or neglect. Consumer reports are available online and survey findings can be accessed by contacting DHS.

What Are the Rights of Nursing Home Residents?

The Nursing Home Reform Act was passed by Congress in 1987. It established the following rights for nursing home residents:

  • The right to freedom from abuse, mistreatment, and neglect;
  • The right to freedom from physical restraints;
  • The right to privacy;
  • The right to accommodation of medical, physical, psychological, and social needs;
  • The right to participate in resident and family groups;
  • The right to be treated with dignity;
  • The right to exercise self-determination;
  • The right to communicate freely;
  • The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility; and
  • The right to voice grievances without discrimination or reprisal.

Defining Elder Abuse & Neglect

What is Elder Abuse?

Elder abuse is a deliberate act or failure to act by a caregiver that results in or creates a risk of harm or injury to an older adult. Elder abuse can take many forms including physical abuse, emotional abuse, sexual abuse, financial exploitation, or neglect. Elder abuse can occur in the home at the hands of a family member or by staff members in a long-term care facility.

What is Exploitation of an Elder?

Financial exploitation of an elder is the unlawful, unauthorized, or wrongful use of an older adult’s resources for the benefit of someone other than the older adult. Examples include:

  • Misuse or theft of the elder person’s money or belongings
  • Fraudulent acts including the forging of financial documents or writing unauthorized checks
  • Depriving an elder person of access, use, or information about their finances or assets
  • Selling, transferring, or obtaining property with the elder person’s consent

What is Neglect of an Elder?

Under Wisconsin law, neglect means “the failure of a caregiver to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual’s physical or mental health.”

About Abuse & Neglect in Nursing Homes

How Common is Nursing Home Abuse?

A recent study by the Center for Aging Research and Clinical Care found that one in five nursing home residents have experienced some form of abuse. Surveys of nursing home residents found that 44 percent have experienced abuse at some point.

Sadly, nursing home abuse goes unreported in most cases so the prevalence of mistreatment is likely even greater. Negligence is one of the most common forms of abuse and is often the result of understaffing, overworked staff, or insufficient funding.

What Are the Warning Signs of Nursing Home Abuse?

Signs of physical abuse include unexplained injuries or bruising, unreasonable use of restraints, or overmedication. Signs of emotional abuse include not wanting to be left alone with staff, agitation, anxiety, depression, withdrawal from normal activities, or other abrupt changes in behavior. Signs of neglect include weight loss, infections, dehydration, unclean conditions, or bed sores.

What Should I Do If I Suspect Nursing Home Abuse or Neglect?

If you suspect that your loved one has been the victim of nursing home abuse or neglect, you have several options. First, collect as much information as you can to support your suspicion of abuse. This can include speaking with your loved one about incidents of abuse or neglect, taking photos of injuries, talking to other residents who frequently interact with your family member, and addressing your concerns with the nursing home administrator. You may also need to have your loved one evaluated by their doctor.

You should also report the alleged abuse to the Wisconsin Department of Health Services–Office of Caregiver Quality and an investigation will be conducted. Finally, you should consider moving your loved to another facility and consulting with a nursing home abuse lawyer that is familiar with handling cases involving nursing home abuse and negligence to discuss your legal options.

Arbitration Agreements in Nursing Home Abuse & Neglect Cases

What is a Nursing Home Arbitration Agreement?

It has become very common for nursing homes to have residents or their family members sign admissions contracts that contain arbitration agreements. Arbitration agreements are binding and force disputes between residents and the nursing home facility to be resolved outside of court. In essence, when you sign an arbitration agreement, you waive your right to a jury trial.

Why Should I Avoid Signing an Arbitration Agreement?

If you sign an arbitration agreement, you are waiving rights that are guaranteed to you by the United States Constitution. You receive no benefit from signing such a document. The textbooks say that arbitration is a private, non-judicial process in which the judge is replaced by a neutral third-party decision maker (arbitrator). In our experience, arbitration benefits the nursing home facility and hurts its residents. If possible, it is best to avoid signing admissions contracts that include arbitration clauses so that you can preserve your rights to sue should abuse or neglect occur. This is because arbitration tends to be more advantageous for the nursing home than the resident.

The compensation awarded in nursing home abuse cases tends to be lower in arbitration than in court and certain rights, such as discovery, may be more limited. Furthermore, the nursing home is often the party that chooses the arbitrator and proceedings in arbitration are typically final, meaning there is no right to appeal.

Arbitration Agreements in Nursing Home Abuse & Neglect Cases

Who is Liable for Nursing Home Abuse and Negligence?

Nursing homes owe residents a duty of care. If a nursing home breaches the duty of care by failing to act in a reasonable and prudent manner, the resident or their survivors may be able to recover damages for their losses. When a resident is injured as a result of abuse or negligence, they can file a claim against the facility. It is important to note that the facility may have a variety of companies involved in its ownership and operations. An experienced nursing home abuse and neglect attorney can conduct a thorough investigation to help you better understand who owns, operates, and controls a particular facility.

Can I File a Lawsuit on Behalf of My Loved One?

In order to file a lawsuit on behalf of a resident that has been abused or neglected in a nursing home, you must have standing. The resident who was abused or neglected would, of course, have standing to bring the case along with the legal guardian of the resident who was injured. If the resident dies, there are two sets of claims. First, there are legal claims that can be brought by the estate of the deceased nursing home resident. Such claims include damages for pain and suffering, punitive damages, and potentially other damages. Second, there are legal claims that may arise as a result of a wrongful death that is brought by the surviving spouse, children of the resident, and potentially by others.

How Long Do I Have to File a Nursing Home Abuse or Negligence Case in Wisconsin?

Generally, to preserve your rights, you must file a nursing home abuse or negligence lawsuit within three years of the date the injury was discovered or within one year of when you reasonably should have known about the injury. A three-year statute of limitations also applies to wrongful death cases. You should consult with an experienced nursing home abuse and neglect attorney for a specific analysis as to the statute of limitations in your case.

When Should I Consult with a Nursing Home Neglect and Abuse Attorney?

It is best to contact an attorney as soon as you suspect your loved one is being abused or neglected. An attorney can assess your case, immediately begin an investigation, and make sure that your claim is filed within the applicable statute of limitations. Getting an attorney involved as early as possible can improve your chances of obtaining a favorable result in your case.

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