Should you sue a nursing home, assisted care or other form of health care facility?

Morton J. Grabel, Esq. Special to The Village News

There are circumstances when a nursing home, assisted care or other form of a healthcare facility should be sued for their negligence, carelessness and/or abusive conduct.

Q. What Kind Of Actions and/or Failures To Act Should Lead To the Filing Of A Lawsuit?

A. There are numerous accidents, willful and intentional acts and failures to act that may leave a health care facility legally responsible. This is so and based on the conduct of an employee or on a policy, procedure or ongoing practice at the facility. Here are a few examples:

• Failure to keep the premises reasonably safe and free of hazards: a] dangers the facility and its staff are aware of or should be aware of through proper attentiveness. This includes everything from preventing slip and fall accidents to preventing one resident from attacking another resident. *Here is an example – leaving a cleaning cart with chemicals unlocked, uncovered and/or unattended for patients/residents to either drink the chemicals or throw the containers/chemicals at another patient/resident.
• Negligent hiring, negligent training or negligent supervision of an employee who ends up neglecting, abusing, or intentionally harming a patient. *Here is an example – not properly screening potential employees who later steals from patients/residents or commit sexual acts upon the patients/residents or hits the patient/resident and has a record of prior criminal acts.
• Negligent supervision of residents who fall and injure themselves. *Here is an example – Patient/resident was given a "Risk Assessment" during the admission process. It was determined the patient/resident was a high risk for falls. The patient/resident is admitted and the facility did nothing to protect the patient/resident from falls. Patient/resident falls and breaks their hip.
• Failure to maintain adequate health and safety policies including keeping clean and sanitary conditions in resident rooms and in common areas such dining halls.
• Failure to provide adequate medical treatment. When sub-standard medical care causes harm to a resident, there may be a case for medical malpractice against the nursing home or medical professional.

There are Regulations on the Standard of Care in addition to State of California Statutory Scheme: In addition to state laws, if a nursing home accepts Medicare, the facility must follow federal regulations that establish the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides:

• The resident environment remains as free of accident hazards as possible; and
• Each resident receives adequate supervision and assistance devices to prevent accidents.

If the nursing home fails to comply with these regulations and a resident is injured; the nursing home is likely to be sued.

Examples of Regulatory Noncompliance

• The facility had several residents, who had fallen many times.
• One resident had Parkinson’s disease, long-term memory deficits, periods of altered perception and restlessness. The facility had implemented numerous interventions including a low bed with mats, a body alarm, adjustment of medications, providing therapy to assist in sitting in the wheelchair, walking with assistance of a therapist, toileting the resident on regular intervals, and placing the resident near the nurses work station. But the resident continued to fall. The court ruled that all these implementations were not enough and the facility should have provided continuous supervision when the resident was out of bed. The judge found that leaving the resident unwatched for even a short period of time, was an invitation for the resident to fall. In simple words, "Do not admit patient/residents if you cannot protect them."
• Other residents fell because they disabled wheelchair alarms, body alarms were not working, would not use their walkers. The court found that more supervision must be afforded these residents and that the facilities violation of regulations caused the residents to sustain serious injuries. Again, in simpler words, "Do not accept patient/residents if you cannot protect them."

Proving liability can be complicated

When a resident is injured at a care facility, it is not always obvious what exactly went wrong, and who might be legally responsible. The evidence available is often incomplete and/or medical records may be self-serving for the nursing home.

Examples such as medical record pages either disappearing or re-numbered or being re-written to camouflage negligence or obvious abuse. In cases like these, your best first step would be discussing the situation with an experienced attorney.

The above information does not establish an attorney-client relationship. To gain the advice of Attorney Morton Grabel, call his Temecula office at (951) 695- 7700.