If you believed your loved one has been abused or neglected at a nursing home or residential care facility, contact our nursing home abuse lawyers for a free and confidential consultation by filling out the online form below, or by calling my office directly at (215) 948-2718.
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- The Reality Of Punitive Damages In Elder Neglect Lawsuits
Understanding How Elder Neglect and Elder Abuse Lawsuits Work
In an elder neglect lawsuit, the resident’s family alleges that the care facility unintentionally injured a resident by being negligent in the treatment and care it provided.
As businesses and as health care providers, residential facilities are legally obligated to provide the services for which they were paid, and are legally responsible for any injuries they cause through their negligence. In 1987, Congress dramatically strengthened the rights of residents with the Federal Nursing Home Reform Amendments, which requires that:
- A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which—
(A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met;
(B) is initially prepared, with the participation to the extent practicable of the resident or the resident’s family or legal representative, by a team which includes the resident’s attending physician and a registered professional nurse with responsibility for the resident; and
(C) is periodically reviewed and revised by such team after each assessment under paragraph (3).
42 U.S.C. § 1396r(b)(2);
- A nursing facility must conduct a comprehensive, accurate, standardized reproducible assessment of each resident’s functional capacity, which assessment (i) describes the resident’s capability to perform daily life functions and significant impairments in functional capacity; (iv) including identification of medical problems; 42 U.S.C. § 1396r(b)(3)(A);
- To the extent needed to fulfill all plans of care described in paragraph (2), a nursing facility must provide (or arrange the provision of) dietary services that assure the meals meet the daily nutritional and special dietary needs of each resident. Services described in clause (iv) must be provided by qualified persons in accordance with each resident’s written plan of care; 42 U.S.C. § 1396r(b)(4)(A)(iv);
- To the extent needed to fulfill all plans of care described in paragraph (2), a nursing facility must provide (or arrange the provision of) (ii) medically related services to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident; (v) an ongoing program, directed by qualified professional, of activities designed to meet the interests and the physical, mental and psychosocial well-being of each resident; 42 U.S.C. § 1396r(b)(4)(A)(ii) & (v);
- A nursing facility must maintain clinical records on all residents, which records include the plans of care … and the residents’ assessments …, as well as the results of any pre-admission screening …; 42 U.S.C. § 1396r(b)(6)(C);
- The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident’s medical symptoms; 42 U.S.C. § 1396r(c)(l)(A)(ii);
- Psycho-pharmacologic drugs may be administered only on the orders of a physician and only as part of a plan designed to eliminate or modify the symptoms for which the drugs are prescribed and only if, at least annually an independent, external consultant reviewed the appropriateness of the drug plan of each resident receiving such drugs; 42 U.S.C. § 1396r(c)(1)(D).
Put together, the requirements of the Federal Nursing Home Reform Amendments prohibit nursing homes from doing what they too often do in elder neglect cases: understaff their facilities with too few care managers, who then can’t do two-person lifts, can’t check on residents regularly, can’t help residents get to the bathroom so they don’t fall, and can’t keep their records up to date to make sure residents are followed and treated for chronic conditions like bed sores, pressure sores, infections, and malnutrition.
In these cases, the challenge to the plaintiffs and their lawyers is proving that the condition suffered by the resident was avoidable and would have been prevented if the nursing home had followed the required treatment plans.
Elder abuse cases are similar, but distinct, from neglect cases. In an abuse case, the perpetrator knows what they are doing is wrong. Examples include sexual abuse of residents, physical abuse like burning or hitting residents, stealing residents’ property, and either over-medicating patients on purpose or stealing patients’ painkiller medications.
In elder abuse lawsuits, the perpetrator is responsible, but the real challenge to the plaintiffs and their lawyers is proving that the care facility knew, or should have known, that the abuse would occur, and so should never have hired or retained the criminal employee.
The Difference Between Nursing Homes, Assisted Living Residences, and Personal Care Homes
Pennsylvania has the third largest aging population in the United States, with 15% of its residents aged 65 or older. For those who can no longer live independently, there are many options for long-term care, including nursing homes, assisted living residences, and personal care homes. Under Pennsylvania law, there are significant differences between the three types of care facilities.
- Nursing homes usually provide 24-hour medical care in addition to assistance with activities of daily living (ADL), like bathing, housekeeping, meals, and personal care, in a residential setting.
- The Centers for Medicare & Medicaid Services maintains a tool that allows individuals to compare nursing homes, available here.
- The largest nursing home companies, by number of beds, are HCR ManorCare, Golden Living, Life Care Centers of America, Kindred Healthcare, and Genesis HealthCare Corp.
Assisted Living Residences:
- Pennsylvania law defines assisted living residences as “any premises in which food, shelter, personal care, assistance or supervision and supplemental health care services are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator and who require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.” 62 P.S. § 1001 (2011).
- The largest assisted living companies in the United States, by number of beds, are Emeritus Senior Living, Brookdale Senior Living, Sunrise Senior Living, Atria Senior Living, and Five Star Quality Care.
Personal Care Homes:
- Pennsylvania law defines personal care homes as “any premises in which food, shelter and personal assistance or supervision are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator, who do not require the services in or of a licensed long-term care facility but who do require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation of a residence in the event of an emergency or medication prescribed for self administration.” 62 P.S. § 1001 (2011).
For more on the difference between assisted living residences and personal care homes, see this Pennsylvania government website.
Abuse and neglect in long-term care facilities are often related to understaffing and poorly paid, minimally qualified, and inadequately trained employees. When nursing homes, assisted living residences, and personal care homes neglect and abuse elderly and disabled residents, the injured party may have a lawsuit against the facility and its staff.
Signs of physical abuse, sexual assault or abuse, or neglect include:
- Broken bones, cuts, bruises, burns, or other injuries
- Weight loss, malnutrition, and dehydration
- Sexually transmitted diseases or infections (STDs/STIs)
- Medication errors
- Poor hygiene
- Onset of dementia or disorientation
- Rapidly declining health or an increase in health problems, including, but not limited to, frequent or untreated urinary tract infections, other infections, bowel impaction, bed sores/pressure ulcers, and pneumonia.
In 2007, the United States Government Accountability Office released a report, Nursing Home Reform: Continued Attention is Needed to Improve Quality of Care in Small but Significant Share of Homes, finding that almost 20% of nursing homes in 2006 were “cited for serious deficiencies, those that caused actual harm or placed residents in immediate jeopardy.” Pennsylvania fared slightly better with 13.6% of its nursing homes cited for actual harm to residents or for placing residents in immediate jeopardy.
Examples of nursing home abuse and assisted living neglect lawsuits in Philadelphia and Pennsylvania:
In the past three years alone, Inglis House, Cheltenham Nursing and Rehabilitation Center, Fairview Care Center of Bethlehem Park, Germantown Home, Bala Nursing & Retirement Center, Chapel Manor Nursing and Rehabilitation Center, Glendale Uptown Home, River’s Edge Nursing and Rehab, Wesley Enhanced Living, Evangelical Manor, and Liberty Court have all been sued by residents’ families as part of the Philadelphia Court of Common Pleas nursing home litigation program.
Below are some examples of the type of misconduct that can give rise to a nursing home lawsuit:
- In 2011, employees at Quadrangle Sunrise Senior Living in Delaware County were arrested and charged with simple assault, aggravated assault, harassment, criminal conspiracy, neglect of a care-dependent person and other crimes for allegedly abusing an elderly resident with dementia. According to the Philadelphia Inquirer, “A Department of Public Welfare report, released Friday, found ‘gross incompetence, negligence, and misconduct on the part of officials’ at Quadrangle Sunrise Senior Living Center in Haverford as well as its parent company, Sunrise Senior Living of McLean, Va.”
- In 2010, in a wrongful death and survival action, a Philadelphia jury awarded $5 million in compensatory and punitive damages to the widow of a patient who died as the result of negligence at the Hillcrest Convalescent Home (Genesis Healthcare Corp.) and Jeans Hospital of Northeast Philadelphia. Blango v. Jeanes Hosp., Inc., 2011 Phila. Ct. Com. Pl. LEXIS 101 (2011).
- A mother filed on behalf of her mentally disabled adult daughter for breach of contract, negligence, and outrageous conduct against the Ivy Ridge Personal Care Center in Philadelphia after finding her daughter unattended, sick, dehydrated, and covered in diarrhea. The jury found in favor of the plaintiff. Ruta v. Ivy Ridge Pers. Care Ctr., No. 3772, Common Pleas Court of Phila. Co., Pennsylvania Civil Division, 29 Phila. 185; 1995 Phila. Cty. Rptr. LEXIS 16, March 14, 1995.
- A court awarded $300,000 in compensatory damages and $800,000 in punitive damages to the plaintiff, a woman with Alzheimer’s Disease who was sexually assaulted at the Country Living Personal Care Home in Wyoming County by a fellow resident who was on probation for aggravated indecent assault. Guernsey v. Country Living Pers. Care Home(s), Inc., 2006 U.S. Dist. LEXIS 31450 (M.D. Pa. May 19, 2006)
If your family member or loved one has suffered neglect or abuse in a nursing home, assisted living residence, or personal care home, use the contact form below for a no-fee, confidential consultation to learn about holding the facility and staff responsible and ensuring that it will not happen to anyone else.
Although we represent clients across Pennsylvania, we focus our nursing home and assisted living liability practice on Philadelphia, Montgomery, Bucks, Delaware, Chester, and Lancaster counties. Similarly, in New Jersey we focus on Camden, Burlington, Glouchester, Salem, Mercer, Ocean, and Atlantic Counties. In Delaware, we focus on New Castle and Kent counties.