Justice for victims of nursing home abuse or neglect comes via various legal bases asserted against a variety of parties
Nursing home abuse and neglect happens with great regularity in both Illinois and Indiana. In fact, Illinois was named first in the nation for nursing home abuse by the Office of the Inspector General for the Department of Health and Human Services. (The OIG listed Indiana at 11th.)
For the complete list as well as more discussion on widespread nursing home abuse and neglect in our part of the country read our discussion, “Illinois and Indiana: High Risk of Nursing Home Injuries from Abuse or Neglect.”
While criminal prosecutions can punish wrongdoers, these criminal matters do not provide compensation or individual justice for the victim of nursing home abuse or neglect. This is left to the civil system, where claims are filed seeking damages against one or more defendants.
However, there is no single “nursing home cause of action” or standardized “nursing home lawsuit.” These cases are varied for many reasons, which include:
- Federal laws may apply in the matter;
- State laws may also apply to the case;
- More than one person (or company) may be legally responsible for what the victim has suffered; and
- Several different parties may be able to file suit seeking justice for nursing home abuse and neglect (other than the victim as plaintiff).
Federal Law and Nursing Home Lawsuits
While some types of claims, for example severe car crash cases, may be brought solely under state statute and case precedent, things can be different in nursing home injury cases.
First, in both Indiana and Illinois, the federal Nursing Home Reform Act (a part of the Omnibus Budget Reconciliation Act of 1987) may apply to the case. This was ground-breaking federal legislation passed over 35 years ago, focusing on establishing a basic high quality of life in American nursing homes through the defining of specific care standards.
The NHRA mandates such things as the ability of a patient to complain about the care they are receiving, as well as having a right to participate in their care decisions.
Additionally, federal law provides exact definitions of both “abuse” and “neglect” in nursing home injury claims.
Under 42 CFR 488.301, “abuse” is defined as:
Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
Under 42 CFR 488.301 “neglect” is defined as:
Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.
This federal legislation will often form the basis of a claim or cause of action against a nursing home or care facility for harm experienced by one of its residents. However, there is also harm that can be experienced by a nursing home injury victim that can be asserted under the state laws of Indiana and Illinois independently of federal jurisdiction.
For more, read:
- Suing Nursing Homes: Tragic Rise in Nursing Home Abuse and Neglect
- Nursing Home Abuse and Neglect in Illinois and Indiana: Finding Justice.
State Law and Nursing Home Lawsuits
In addition to claims based upon federal law, there are numerous instances where the states provide the nursing home injury victim with avenues to justice.
These state lawsuits can be filed based upon state matters that include:
1. Malpractice Causes of Action
Both Indiana and Illinois have longstanding precedent protecting victims of medical malpractice involving health care providers. Malpractice claims are asserted according to state law.
For more on malpractice lawsuits in Indiana and Illinois, read:
- Danger of Dying from Medical Error: Patient Safety and Preventable Malpractice Deaths; and
- DOJ Prosecutions of Hospitals and Doctors: Confirming Epidemic of Profit – Not Patient Care – as Motivation for Health Care Industry.
2. Negligence Causes of Action
Additionally, claims can be filed based upon negligence. When a resident is denied food or drink, for instance, this can form the basis of a negligence case against the nursing home, its corporate owners, the individual caretakers, and more.
In both Illinois and Indiana, the victim of nursing home injuries can sue for negligence damages based upon a variety of injuries suffered as nursing home abuse or neglect.
These include bad acts involving:
- Neglect and negligence in the personal supervision of the resident – victim;
- Neglect and negligence in providing care to the resident – victim;
- Nursing home owners and managers (and third party contractors) can be sued for neglect and negligence in the upkeep, repair, and maintenance of the resident-victim’s room as well as the facility’s premises;
- Employers can be sued for neglect and negligence in hiring nursing home or care facility employees;
- Employers can be sued for neglect and negligence in keeping (retaining) these employees; and
- Nursing home owners, managers, staff, and third party contractors may all be sued for neglect and negligence in failing to properly choose, maintain, and repair any equipment (medical, rehab, physical assistance, etc.) used by the resident – victim at the facility.
For more, see: Nursing Home Falls: Claims for Serious or Fatal Fall Injuries to Nursing Home Residents.
3. Claims Based Upon Intentional Torts
Intentional bad acts by wrongdoers can result in claims being asserted by the nursing home injury victim that are based upon intentional torts defined in the state laws of Indiana and Illinois.
For instance, if a resident-victim suffers harm from being assaulted (physically or sexually), then both Illinois and Indiana provide causes of action which can be asserted based upon this intentional conduct.
Here, the law may provide not only compensatory damages but also exemplary (or punishment) damages against the nursing home as well as the wrongdoer who committed the assault.
4. Consumer Protection Claims
Often, the nursing home injury victim has suffered harm in a variety of ways. He or she may have been both abused and neglected.
Additionally, predators may have had access to the financial assets or property of the resident, resulting in the elder’s financial exploitation.
Here, the abuse or neglect lawsuit may contain a cause of action based upon state consumer protection laws, where both the nursing home or care facility and any of its employers involved in the exploitation may be sued for damages. Both Illinois and Indiana have passed specific laws to protect against the financial exploitation of the elderly.
Damages in Nursing Home Abuse and Neglect Cases
In both federal and state cases, the nursing home injury victim must prove their right to have monetary damages awarded against them by the defendants.
Once liability is proven, then the nursing home injury victim must be able to provide evidence supporting those types of harm for which the law provides recompense.
These compensable damages for nursing home abuse and neglect include things like:
- Medical care and treatment needed as a result of the abuse or neglect;
- Psychological care and treatment needed as a result of the abuse or neglect;
- Pain and suffering experienced by the victim, both physical and mental;
- Emotional distress experienced by the victim; and
In some instances, punitive damages may be allowed in order to punish the defendants responsible for the nursing home injuries.
Who Can Sue for the Nursing Home Victim and Get Justice?
Of course, as in any injury matter, the injured victim has the primary right to file a civil lawsuit against those who have caused him or her harm. However, when the elderly are involved, they may not be able to exert this fundamental right (or they may be afraid to do so).
In these instances, family members may be able to take the legal reins and battle against those who have abused or neglected their loved one on his or her behalf.
And, of course, in those instances where the resident has passed away, the wrongful death laws of Indiana and Illinois each provide certain family members with the legal right to sue for the nursing home abuse or neglect suffered by the deceased.
Nursing Home Abuse and Nursing Home Neglect Lawsuits in Indiana and Illinois
Too many elders in our nursing homes and care facilities are the victims of nursing home abuse and neglect. It is horrific to know that Illinois was found to be the state with the highest number of nursing home abuse victims in the country, and that Indiana was not far behind, ranking eleventh in the nation.
Filing for justice on behalf of these most vulnerable victims against those who have intentionally hurt them or have caused them severe harm through their neglect can be undertaken by the victim or their concerned family members.
These personal injury claims based upon nursing home abuse or neglect can be filed in Indiana and Illinois where the wrongdoers can be held legally liable for monetary damages based upon negligence, negligent supervision, medical malpractice, among other laws. In some instances, not only compensatory but punitive damages may be allowed.
For more read:
- Nursing Home Injury Claims for Victims in Indiana and Illinois; and
- Seeking Justice for Victims of Nursing Home Injuries in Indiana and Illinois.
If you or a loved one suspects someone is a victim of nursing home abuse or neglect, then it is vital that those suspicions be investigated. We must all share in the responsibility of protecting the most vulnerable members of our society. Justice can be served. Please let’s be careful out there!
