Residents of nursing homes are entitled to compensation for any injuries that are caused by the home’s abuse or neglect. Bringing a lawsuit against a nursing home can lead to financial compensation, and can deter the nursing home from abusing or neglecting other residents in the future. In a claim or lawsuit against a nursing home, an injured resident can recover damages for things such as medical bills, pain and suffering, disability or loss of normal life, and emotional distress.
General Elements of Damages
Medical Expenses. Residents can recover for any medical expenses they incur in receiving treatment for an injury caused by a nursing home’s violation of the Illinois Nursing Home Care Act. For example, if a resident falls, breaks a bone, and has to be taken to a hospital for emergency medical treatment, the resident can recover the full amount of the medical bills incurred at the hospital. This is true even if Medicare or the resident’s private health insurance paid the bill on behalf of the resident and the resident did not incur any out of pocket expenses. Further, if the resident receives follow up treatment such as physical, occupational, or rehabilitative therapy, the resident can also recover for the cost of this treatment.
Pain and Suffering. Residents are entitled to money damages to compensate them for the pain and suffering they experienced and are reasonably certain to be experience in the future as a result of their injuries. Many common injuries experienced by residents at nursing homes, such as falls and bed sores, are extremely painful.
Disability and Loss of Normal Life. Residents can recover for the disability or loss of normal life experienced and reasonably certain to be experienced in the future. Disability and loss of normal life are alternative elements of damages, meaning a resident can recover for one of these two elements, but not both. Loss of normal life is defined as the temporary or permanent diminished ability to enjoy life, including a person’s inability to pursue the pleasurable aspects of life like recreation or hobbies.
Emotional Distress. Residents can recover for the emotional distress experienced as a result of the injury and the emotional distress reasonably certain to be experienced in the future.
Disfigurement. If an injury such as a fall or burn leads to scarring or disfigurement, a resident can recover damages for the disfigurement.
Caretaking Expenses. A resident can recover for the reasonable expense of necessary caretaking help to heal from their injuries, and the present cash value of expenses reasonably certain to be required in the future.
Future Injuries
As discussed above, nursing home residents are entitled to recover for elements of damages that will be experienced in the future, such as future medical bills, pain and suffering, and loss of normal life. To be entitled to future damages, the resident must show that it is reasonably certain that they will in fact experience such damages. When a resident has suffered a serious injury and will experience ongoing damages, it may be advisable to retain a certified life care planner to evaluate the resident’s condition and testify at trial about the future care the resident will need, and the cost of that care.
Punitive Damages
Punitive damages may be awarded when a nursing home’s conduct towards a resident is willful and wanton. Both the Illinois Supreme Court and legislature define willful and wanton conduct as “a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.” When punitive damages are available, they are allowed as a warning and example to deter the defendant and others from committing like offenses in the future.
When determining the appropriate amount of punitive damages, the judge will instruct the jury to consider three questions: (1) how reprehensible was the nursing home’s conduct, (2) what harm did the home’s conduct cause the resident, and (3) what amount of money is necessary to punish the home and discourage it from committing future wrongful conduct.
When weighing the reprehensibility of a nursing home’s conduct, the judge will instruct the jury to consider: (a) the facts and circumstances of the home’s conduct, (b) the financial vulnerability of the resident, (c) the duration of the misconduct, (d) the frequency of the misconduct, (e) whether the harm was physical as opposed to economic, and (f) whether the home tried to conceal the misconduct. The jury may also consider other factors when appropriate on a case-by-case basis.
Wrongful Death and Survival Damages
If a resident dies as result of a nursing home’s abuse and neglect, then the resident’s family can bring a wrongful death and survival action against the home. A survival action seeks recovery for damages suffered by the deceased resident prior to his death, such as pain and suffering and medical bills, and a wrongful death action seeks to recover for damages sustained by the decedent’s survivors as a result of the death, such as loss of services and society, mental suffering, and funeral expenses.
RESOURCES:
Illinois Pattern Jury Instructions (30.00 Series)
Illinois Pattern Jury Instructions (35.00 Series)
Pfister v. Shusta, 167 Ill. 2d 417 (1995)
745 ILCS 10/1-210 (Willful and Wanton Conduct)
Wrongful Death Act (740 ILCS 180)