Nursing Home Abuse And Neglect

Abuse and neglect in nursing homes unfortunately takes many different forms, including physical abuse, sexual abuse, emotional abuse, confinement, passive neglect, willful deprivation of medication, food, or physical assistance, and financial exploitation. The National Center on Aging (NCOA) reports that elders who have been abused have a 300 percent higher risk of death compared to those who have not been mistreated.

According to the NCOA and the National Center on Elder Abuse, signs of physical abuse include:

• Bruising or welts on the skin, especially those appearing on the face or lateral and anterior region of the arms (physically abused elders are more likely to display bruises than seniors injured by accident).
• Fingerprints or handprints visible on the face, neck, arms, or wrists
• Burns from scalding or cigarettes
• Cuts, lacerations, or puncture wounds
• Sprains, broken bones, or dislocations
• Internal injuries or vomiting
• Torn, stained, or bloody clothing
• Appearing disheveled, in soiled clothing, or inappropriately attired for climate
• Appearing hungry, malnourished, disoriented, or confused
• Unexplained sexually transmitted diseases

Signs of neglect include:

• Bed sores
• Slips or falls
• Malnutrition and dehydration, including sudden weight loss
• Poor hygiene
• Lack of medical aids such as glasses, a walker, teeth, hearing aids, or medications
• Disappearing from contact with friends or family
• Appearing disoriented or confused
• Appearing disheveled or wearing soiled clothing
• Expressing feelings of hopelessness, worthlessness, or insignificance
• Failing to take prescribed medications or nutritional supplements
• A resident blaming themselves for problems arising with family or caregivers

Other warnings signs of abuse, neglect, and mistreatment of residents in nursing homes include a resident’s silence and reluctance to communicate, staff refusing to let family visit a resident or delaying visitors who come to see a resident, staff not allowing a resident to be alone with a visitor, and staff asking family and visitors to wait in the hallway while they perform tasks for the resident such as changing clothes or bedding.

If you or someone you know has been a victim of abuse and neglect in a nursing home, you have several options to report the misconduct. First, you can call the Illinois Adult Protective Services Hotline at (866) 800-1409. Second, you can call the Illinois Department of Public Health’s Nursing Home Complaint Hotline at (800) 252-4343. Finally, if the abuse or neglect concerns a resident in a supportive living facility (SLF), you can call the Illinois Department of Healthcare and Family Services SLF Complaint Hotline at (800) 266-0768.

Adult Protective Services investigates allegations of abuse affecting adults 60 and over. Once abuse is reported, a case worker may contact the victim and family members to investigate the report.

The Illinois Nursing Home Care Act provides that residents of nursing homes have the right to manage their own financial affairs. Unfortunately, the elderly are frequently the target of financial abuse and exploitation, which can be perpetrated by employees and staff at nursing homes such as caretakers and nurses. The National Adult Protective Services Association reports that one in 20 older adults suffer from financial abuse or mistreatment every year, and the National Council on Aging estimates that elder financial abuse and fraud costs older Americans between $2.9 billion and $36.5 billion annually.

Residents of nursing homes may be particularly susceptible to financial exploitation if they do not understand modern internet banking, or if they are physically or mentally compromised. Because of this, family members of nursing home residents depend on the homes to be alert for signs that a resident is being financially abused or exploited.

A. Common Types of Financial Abuse and Exploitation of the Elderly

The National Council on Aging reports that the top ten scams targeting seniors are:

• (1) Medicare and Health Insurance Scams. Perpetrators may pose as a Medicare representative to trick residents into giving them their personal information.
• (2) Counterfeit and Prescription Drug Scams. Counterfeit drug scams often operate on the Internet, where residents may go to find better prices on specialized medications. An elderly person may purchase drugs that will not help them or are unsafe.
• (3) Funeral and Cemetery Scams. Perpetrators attend the funeral service of a stranger, and then find a grieving widow or widower and claim the deceased had an outstanding debt. The perpetrator will then try to extort money to settle the fake debt.
• (4) Fraudulent Anti-Aging Products. Scammers may target older Americans on the internet with fake beauty products such as counterfeit Botox or bogus homeopathic medicines.
• (5) Telemarketing and Phone Scams. Scammers use fake telemarketing calls to prey on older people, who as a group make twice as many purchases over the phone than the national average. Common examples of telemarketing fraud include: (1) telling an elderly person that he has found a large sum of money and is willing to split it if the person makes an upfront payment from his bank account; (2) convincing an elderly person to send money based on the false pretext that their grandchild or another relative is in trouble, such as being in jail or in the hospital, and (3) soliciting donations to fake charities, especially after natural disasters.
• (6) Internet Fraud. Internet fraud often includes tricking elderly people into downloading viruses that will steal the user’s personal information. Email phishing scams often come from a perpetrator imitating a legitimate company or institution, such as the IRS, and asking the user for their personal information.
• (7) Investment Schemes. Pyramid and Ponzi schemes often target the elderly, especially those planning their retirement or trying to manage their savings.
• (8) Homeowner and Reverse Mortgage Scams. Perpetrators target elderly individuals that own their own homes and convince them to take out reverse mortgages that steeply undervalue the property. Reverse mortgage scammers may also simply pocket money gained from a reverse mortgage that is meant for the homeowner.
• (9) Sweepstakes and Lottery Scams. Scammers tell an older adult that they have won a lottery or sweepstakes of some kind and need to make some sort of payment to unlock the supposed prize.
• (10) The Grandparent Scam. A scammer will call an older adult and imitate a grandchild. Then, the scammer will ask for money to solve an unexpected financial problem such as overdue rent or car repairs.

Other common scams include the theft of cash or personal property, fraud by someone managing a resident’s property, and the unauthorized sale or transfer of real estate owned by nursing home resident. Finally, scammers may also pose as legitimate companies offering to recover money that a resident has lost to another scammer, and then charge an advance fee to recover money that the scammer has no intention of trying to collect.

B. Signs of Financial Elder Abuse

The Consumer Financial Protection Bureau identifies several warning signs that a long-term care resident is being financially exploited or abused, including:

• Possessions disappearing from a resident’s room or apartment.
• A resident being pressured into making an important decision or signing a document.
• A previously uninvolved person claiming authority to manage a resident’s care or finances.
• Unpaid facility bills.
• A resident’s checkbook showing checks made out to “cash” frequently or check numbers out of sequence.
• A resident making frequent or costly gifts to facility staff or volunteers.

Other warning signs can include requests to change legal documents such as a will or power of attorney; past due or shut off notices from utility companies; foreclosure notices of liens on real property; a suspicious signature on legal documents; and a resident complaining about missing money or property.

C. Reporting Financial Abuse or Neglect of a Nursing Home Resident

If you or someone you know has been a victim of abuse and neglect in a nursing home, you have several options to report the misconduct. First, you can call the Illinois Adult Protective Services Hotline at (866) 800-1409. Second, you can call the Illinois Department of Public Health’s Nursing Home Complaint Hotline at (800) 252-4343. Finally, if the abuse or neglect concerns a resident in a supportive living facility (SLF), you can call the Illinois Department of Healthcare and Family Services SLF Complaint Hotline at (800) 266-0768.

The Consumer Financial Protection Bureau also advises financial institutions to report suspected financial exploitation of an older adult to local, state, and federal authorities.

Adult Protective Services investigates allegations of abuse affecting adults 60 and over. Once abuse is reported, a case worker may contact the victim and family members to investigate the report.

If you or someone you know has been a victim of abuse or neglect in an Illinois nursing home, you may file a complaint by calling the Illinois Department of Public Health’s toll-free hotline at (800) 252-3453.

Nursing homes in Illinois are licensed, regulated, inspected, and certified by many different public and private agencies, including the Illinois Department of Public Health (IDPH) and the U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services. The IDPH is responsible for ensuring that nursing homes comply with state laws and regulations. Every year, the IDPH conducts approximately 1,300 inspections of nursing homes and responds to about 6,000 complaints. The inspections are done to evaluate the fitness and adequacy of the nursing home and its equipment, staff, and policies.

An IDPH inspection may include inspection of medical records, observation of care given to residents, and interviews with residents, family, and staff member. Inspections in response to complaints focus on those areas of resident care where the nursing home is alleged to have been deficient or provided substandard care. If the inspection reveals additional problems, a broader inspection may be started.

When the IDPH determines that a nursing home has violated regulations or laws, it will make a deficiency determination. Deficiencies range from isolated violations with no harm to residents to widespread violations that injure residents or place them in immediate risk of harm. When deficiencies are cited, the IDPH requires the home to submit a written plan of correction within 10 days to explain how and when each problem will be corrected.

If it is warranted, the IDPH may fine a nursing home or suspend or revoke a nursing home’s license. The IDPH may also close an unlicensed facility. According to the IDPH, the most common penalty is a $10,000 fine per violation. When a nursing home receives a citation for a deficiency that results in a fine or other punishment, the IDPH issues a penalty letter identifying the violations at issue. Complete reports of nursing home inspections and plans of correction are available through the IDPH’s website. Federal inspection reports are also available through medicare.gov.

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.

A. General 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 because 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.

B. 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.

C. 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.

D. 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 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, such as loss of services and society, mental suffering, and funeral expenses.

A. Investigating the Case

The first step in a nursing home case is for the resident’s lawyer to thoroughly investigate the facts of the case and the client’s injuries. This is done by interviewing the injured resident, the resident’s family, and any other witnesses to the nursing home’s abuse and neglect. Second, a lawyer will obtain and review the resident’s medical records from the home and from any other providers who treated the resident. In reviewing the records, the goal is to: (1) identify specific violations the Illinois Nursing Home Care Act, (2) understand the full nature and extent of the resident’s injuries, and (3) determine whether the resident needs and future medical treatment to recover from those injuries. A lawyer may also send the resident’s medical records to a paid nursing consultant to get a second opinion about the home’s violations of the Illinois Nursing Home Care Act, and how the home could have better cared for the resident.

Common violations of the Illinois Nursing Home Care Act include:

• Failing to provide the necessary care and services to maintain the highest practicable level of physical, mental, and psychological well-being
• Failing to protect a resident from abuse or neglect
• Failing to establish an adequate care plan
• Failing to prevent the onset of bedsores and treat existing bedsores
• Failing to prevent a resident from falling
• Failing to provide adequate nutrition and hydration
• Failing to prevent wandering and elopement

Once a clear picture emerges regarding a nursing home’s substandard care of a resident and the nature and extent of the resident’s injuries, the lawyer will submit a demand letter to the nursing home. The demand letter will specify how the nursing home provided inadequate care and will educate the home about the injuries sustained by the resident as a result of the inadequate care. The demand letter will also demand a specific sum of money to settle the resident’s claim.

B. The Litigation Process

If the nursing home refuses to accept responsibility, then the lawyer will file a lawsuit against the home on behalf of the injured resident. If the resident is still alive and is competent to bring the suit personally, then the suit can be brought in the resident’s name. If the resident is alive but has an appointed guardian, then the suit will be brought by the guardian on behalf of the resident.

If the resident has passed away, the lawyer must determine who the proper plaintiff will be to represent the deceased resident’s estate. If the resident had a will, then the plaintiff will be the executor of the resident’s estate. If the resident did not have a will, then the lawyer will need to have a independent administrator appointed by the court to represent the decedent’s estate.

Once a lawsuit is filed, the plaintiff must serve the defendant nursing home with a copy of the complaint and summons. Once the home is served, it must hire an attorney to file an appearance on its behalf and file an answer admitting or denying the allegations of the complaint. Once the home is served and an answer is filed, the parties will engage in discovery.

Discovery involves both written and oral discovery. Commonly used written discovery tools are interrogatories and requests to produce documents. Interrogatories issued by the plaintiff will ask the defendant nursing home to identify witnesses to the allegations of the complaint, and to identify key individuals employed by the defendant, such as the director of nursing and the home administrator. They will also ask for information about the home’s insurance policy. Interrogatories issued by the defendant will also ask for the identity of witnesses to the allegations of the plaintiff’s complaint such as the resident’s family members. The interrogatories will also ask for information about the resident’s injuries and treatment. Requests to produce documents will ask the opposing party to disclose documents that may be relevant to the case, such as pictures of the resident’s injuries and medical records and bills.  A plaintiff’s attorney will also ask the nursing home to produce its internal policies and procedures regarding patient care in order to determine whether the home violated any of its own internal rules. A home’s violation of its own policies and procedures can be powerful evidence that a home abused and neglected the plaintiff.

After written discovery is complete, the parties will engage in oral discovery, in which each party to the lawsuit will depose the other party’s witnesses. For the plaintiff, this usually involves deposing key employees of the home such as the administrator and director of nursing, as well as any nurses and staff members who were directly involved in caring for the resident. A skilled plaintiff’s attorney will use depositions to develop a roadmap for cross-examining the witnesses at trial and will also seek to elicit admissions from the witnesses that the defendant nursing home violated the relevant standards of care.

The defendant nursing home will usually depose the resident, if he or she is still alive, and any members of the resident’s family who have knowledge of the resident’s injuries or death.

Once depositions of the lay witnesses are complete, the parties will disclose to the court whether they have retained any expert witnesses to offer opinions at trial. Commonly, a plaintiff will retain a nursing consultant who is experienced with nursing home care to testify at trial about the ways in which the defendant nursing home provided substandard care to the resident. A plaintiff may also retain an expert witness to testify about the nature and extent of the injuries suffered by the resident. The defendant nursing home may also hire its own experts to rebut the plaintiff’s experts.

Throughout the litigation process, the parties may attempt settlement negotiations. However, if settlement negotiations are unsuccessful, then the case will proceed to trial before a jury. The Arlo Law Office always prepares every nursing home case as if it is going to trial, and always stands ready, willing, and able to try a case before a jury.