Americans are living longer today than in the past, which means that many families are forced to place a loved one under the care of a nursing home. Unfortunately, not all residents receive the care they deserve at nursing homes. Some residents are not sufficiently fed or cleaned, and some are subject to serious abuse, including starvation and sexual abuse. In addition, due to age and/or mental impairments, nursing home residents often are unable to report abuse.

Camera LensMany nursing home cases result from negligent care of residents, but some cases arise from intentional abuse from staff. In cases in which a person acts with the intent to cause harmful or offensive contact with another person, and contact results, it constitutes battery. Assault also results in most cases, which arises from the person’s apprehension of imminent contact. In cases of intentional abuse from a nursing home staff member, assault and battery can often easily be established with the right evidence. However, it can be difficult to prove abuse in nursing home cases, because the abuse usually occurs outside the presence of independent witnesses, and residents are often developmentally impaired and cannot explain what occurred.

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Although concerns for nursing home residents often arise based on allegations of abuse by staff members, other residents can also be perpetrators of abuse. Of course, residents live together in one facility and will often interact, but a nursing home has an obligation to protect its patients—even from other residents.

The Nursing Home’s Duty to Prevent Abuse

Nursing homes have a duty to keep their residents safe and prevent abuse, including abuse from other residents. If one resident is being abusive towards other residents, then the resident should be controlled, and removed if necessary. There are also a number of ways nursing homes can help prevent abuse, for example by creating more private spaces for residents, improving lighting, ensuring proper staffing, and taking action when residents engage in abusive behaviors. If a nursing home fails to take an issue seriously, it may liable for injuries that could have been prevented.

Old WomanAll residents have the right to live in a safe environment. Mistreatment against residents can come in the form abuse, neglect, or exploitation. Abuse can include physical, mental, verbal, and sexual abuse. Neglect is the failure to provide proper care to a resident. Exploitation means the illegal or improper use of a resident’s money or belongings.

Federal nursing home regulations provide residents with certain rights, including the right to be free from abuse, neglect, and exploitation, to be treated with dignity and respect, and to have security of personal possessions. The facility is required to have policies and procedures that prohibit abuse, neglect, and exploitation, to investigate and report all allegations of abuse, and to protect residents from mistreatment.

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Many people assume that since lead paint is no longer legal, there is nothing to worry about. However, although lead paint has been banned since 1978, many homes still have lead paint underneath the current coat of paint.

Paint CanA Landlord’s Duty to Tenants

A landlord has a duty to tenants to keep the property in a certain condition and to make certain disclosures to tenants. If a home was built prior to 1978, renters must receive a lead-based paint pamphlet and any known information about the presence of lead-based paint. In Illinois, a landlord also has a special duty to minors. A landlord may be liable for injuries if the landlord knows or has reason to know that minors frequent the premises, there is a dangerous condition, minors are likely to be injured based on their failure to appreciate the risk, and the expense of remedying the condition is slight compared to the risk to minors.

Lead Paint Poisoning Claims

Generally, lead poisoning cases are based on the theory of negligence. Claims may include a negligent failure to maintain safe premises, negligent misrepresentation, and negligent repairs. Plaintiffs may also be able to assert a breach of the covenant to repair and the implied warranty of habitability, as well as fraud and product liability claims, among others.

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Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversigHospital Bedht, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

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In a recent case, an Illinois appellate court recently decided that a nursing home was required to turn over certain documents in a medical negligence lawsuit after a resident fell at the nursing home. The resident in the case was an 88-year-old woman who was allegedly injured in a fall while she was a resident of the home. The plaintiff, who was the patient’s guardian, filed a claim on behalf on the patient’s behalf and was trying to get a copy of an internal report from May 2012 after the patient’s fall at the home.

glassesThe nursing home argued that the internal documents concerning the patient’s fall were protected under the Illinois Medical Studies Act and under the Long-Term Care Peer Review Act and Quality Assessment and Assurance Protection Act.

The Quality Assurance Act and the Medical Studies Act

The Quality Assurance Act protects proceedings and communications involving a peer review or a quality-assessment-and-assurance committee at long-term care facilities. The Medical Studies Act is a similar act that also protects peer-review proceedings and communications but applies to medical facilities. The laws protect certain information in order to encourage internal studies to improve care for patients.

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Nursing home abuse often goes unreported due to the patient’s mental health and vulnerability. It can be difficult to detect abuse or neglect because family members are not present 24 hours a day. It also can be difficult to prove allegations of abuse because the nursing home resident may be unable to testify due to mental health issues such as dementia, or because the resident is no longer alive. That being said, there are laws that protect the rights of residents in order to protect them from cases of abuse or neglect, and anyone suspecting a loved one is being abused in an Illinois nursing home should consult with a dedicated personal injury attorney.

Woman in WheelchairProtections for Nursing Home Residents

There are different statutes and regulations that protect the rights of senior citizens and nursing home residents. A central statute in Illinois is the Nursing Home Care Act (NHCA). The Act establishes a resident’s “bill of rights” and creates a system to resolve claims under the Act. Under the NHCA, nursing homes are liable to residents for any intentional or negligent act or omission that causes an injury to a resident. Neglect is defined as a facility’s failure to provide adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living necessary to avoid physical harm, mental anguish, or mental illness for a resident.

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On February 22 of this year, the United States Supreme Court will hear arguments in a case that may greatly affect nursing home care in this country. According to one news source, the case considers the legality of arbitration agreements signed by representatives of nursing home residents.

Supreme CourtIn that case, two nursing home residents died in nursing homes. Their families filed lawsuits against the nursing homes after their deaths, but the nursing homes tried to force the families into arbitration under signed arbitration agreements. The Kentucky Supreme Court previously ruled that nursing home residents had not explicitly allowed their representatives to enter into arbitration agreements, and these agreements were not binding as a result.

The nursing homes in the case argue that states cannot place more of a burden on the creation of arbitration agreements than they would on creating any other contract. Long-term care providers contend the decision “poses a substantial threat to the long-term care industry at a time when demographic trends dictate that provision of long-term care could become increasingly important.” They say the Federal Arbitration Act and federal policy that favors arbitration preempt state laws like Kentucky’s. They argue the FAA was intended to make arbitration agreements equally as enforceable as any other contract, unless there are grounds that invalidate them just as in any other contract.

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In a recent case, a federal appeals court found in favor of an Illinois man who alleged his ladder was defectively designed. The man fell off his ladder while he was replacing the screws on his gutter and suffered a traumatic brain injury as a result of the accident. He later suffered from seizures, dementia, and quadriplegia.

LadderAfter the accident, he brought a lawsuit against the ladder’s manufacturer, claiming that the ladder was defectively designed and that the defective design had caused the ladder to collapse. He argued the company did not design the ladder to accommodate the weight of people at or near 200 pounds. He weighed 224 pounds shortly before the accident.

The case went to trial, and the jury found in the man’s favor. The jury awarded him over $11 million in damages. Afterwards, the manufacturer argued it was entitled to a new trial. It contended that the man did not present sufficient evidence that the manufacturer had defectively designed the ladder.

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In a personal injury claim, a plaintiff has to prove not just liability but the extent of the damages. This means the plaintiff may need to establish the nature of the injuries, the expected duration of the injuries, how the injuries may have aggravated a pre-existing condition, disfigurement, disability, pain and suffering, emotional distress, necessary medical expenses, lost wages, care-taking expenses, and any shortened life expectancy.

Semi-TruckJury Awards $15 Million in Damages to Student After Crash

A tragic car accident in 2015 resulted in the death of five Georgia nursing students. A jury recently awarded the lone survivor $15 million. According to the a news report, a truck driver had been driving 70 miles per hour down a highway and failed to slow down or stop for traffic, causing him to crash into several cars. The truck driver’s truck drove over the top of a Toyota Corolla and crashed into a Ford Escape that was carrying the students. The students had been on their way to their last day of clinical rotations at a nearby hospital. The survivor brought a lawsuit against the truck driver’s trucking company.

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In a recent case, the plaintiff brought a personal injury claim against another driver and his company after he was injured in a car accident. The case proceeded to trial, and a jury found in favor of the plaintiff. The jury awarded him $84,283 in economic damages and $40,000 in noneconomic damages.

Car AccidentThe defendants argued the award should be reduced, since the plaintiff paid only $1,941 toward his medical expenses, and his insurance had paid the rest. Initially, the trial court agreed and reduced the award to $24,299. It took the original economic damages award and reduced it by the cost to secure the collateral source benefits of approximately $58,000, resulting in the award of $24,299.

However, the state’s supreme court reversed the case on appeal and held the plaintiff’s award should not have been reduced. The court explained that normally, a state statute allowed an award to be reduced if the expenses were paid by another source. But the court further explained that this rule did not apply if the other payer was entitled to reimbursement from the plaintiff. Since in this case, the insurance company had a right to be reimbursed, even if only for a portion of the amount, the award should not have been reduced.

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