This decision is not taken lightly when making the decision to place an older adult in an assisted living home or long term care facility. It is a system that relies on nothing but trust and is based on the assumption that those who have been trained will be able to deliver the specialized care, dignity and safety that the vulnerable person needs. Sadly, the current elder care trend is towards turning the industry into a corporate business and profit making administrative system. When budgets are skimmed on the sides of operating budgets and have a greater focus on the performance of the business, the quality of care is usually compromised, vulnerable individuals are very vulnerable to physical and emotional abuse.
There are many things that must change from the individual’s suffering to strategic legal steps after institutional abuse. As per Kendall Law Firm, nursing home abuse and nursing home neglect cases in Virginia are particularly complicated civil cases. They are not necessarily analogous to typical personal injury claims, but rather complex and multi-layered where medical malpractice, state administrative and corporate compliance laws intersect. In the context of family law actions to recover damages for an injured loved one and a responsible institution, it is an important requirement to know the technical aspects of elder care litigation before embarking on a successful resolution.
The Legal Dichotomy: Distinguishing Institutional Neglect from Active Abuse
In order to establish a viable civil claim against a long-term care facility, it is important to properly identify the type of harm caused by the facility. Virginia law and codes differentiate between two main types of facility misconduct, which each calls for different types of proof.
Systemic Nursing Home Neglect
Neglect is a failure to take action. It is when a facility (by its management or personnel) does not offer the essential services and accommodations necessary for a resident to have a physically and mentally sound state. This not only applies to the denial or improper provision of food, water, clean clothing, medical monitoring and hygiene support, but also to the careless provision of these items.
Importantly, it is unlikely that a single malicious employee is to blame for the neglect, it is almost always the direct result of chronic understaffing, done on purpose. If operators of businesses have skeleton crews on duty in order to boost profits, the few workers on duty end up being overwhelmed and a reduction in the minimal standard of care is a statistical inevitability.
Avoiding the Signs of Active Nursing Home Abuse
Abuse, on the other hand, is by commission when someone deliberately takes steps that result in physical violence, emotional harm and/or physical constraint that they did not intend. Physical assault, verbal degradation, financial exploitation and sexual battery are all included in this category.
In addition, an often seen form of institutional abuse is the illegal use of chemical restraints. When staff give heavy sedatives or antipsychotics without proper medical diagnosis, they are not used for medical purposes only as a management tool to make a resident ‘sleep’ and so reduce the workload of the staff.
Advanced Red Flags: Recognizing The Warning Signs of Harm
Many of the long-term care residents have advanced stages of cognitive impairment, including Alzheimer’s disease or a variety of dementias, and often do not have the ability to express and/or report incidents of mistreatment. Thus, the burden of discovery is all upon family members on their routine visits.
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There are a number of important, objective clinical indicators that are the basis of a sophisticated evaluation of a resident’s well-being:
1. The Development of Advanced Pressure Ulcers (Bedsores)
In terms of law and action, bedsores are one of the most conclusive evidence of the negligence of a care facility. Injuries are caused when a resident remains in a bed or wheelchair for long periods, resulting in the pressure of the bed or wheelchair on the tissue depriving it of blood. The regulations for Virginia healthcare facilities require that they carry out careful and carefully planned turning programs on a person by person basis, with the frequency of being at least once every two hours, for residents with limited mobility. Stage III or Stage IV deep tissue wound is evident failure of basic nursing procedures.
2. Recurrent Falls and Unexplained Orthopedic Fractures
The elderly are often susceptible to impaired balance, but facilities are required by federal and state regulations to conduct the in-depth fall-risk evaluation when you enter the facility. Multiple falls by residents or undocumented fractures without any documentation of the fall that occurred suddenly, suggest the facility failed to implement safety measures. These are low beds, motion alarms for the bed, non-slip flooring and physical supervision when transferring in and out of the bed.
3. Uncontrolled Weight Loss and Dehydration
When a resident’s body condition noticeably worsens, with rapid weight loss, sunken face or dry cracked skin, the answer is obviously a failure to properly monitor the resident. A record of food and fluid consumption should be maintained by the facility, in detail. These logs are useful to establish that the facility is not providing the essential nutrition necessary for life, if they are missing or if there are long gaps.
Obstacles Faced by Companies and How to Face the Burden
In a civil action against a long-term care corporation, it is important to wear a tough defense that will do everything to extinguish the claim.When pursuing a civil suit against a long-term care corporation, it is crucial to have a strong defense that will try to squelch the lawsuit. Nursing homes have strong, well funded insurance companies and corporate defense companies. When they have to deal with a resident’s physical deterioration or mortality, their default position is to hold that it was totally due to the resident’s age and his or her medical issues.
To break this defense, an aggressive investigation with a focus on obtaining internal facility records needs to take place before the records can be altered or destroyed. A special attorney submits immediate discovery requests to the facility to get their internal electronic records, including staffing sheets from the day, whether they were staffing the facility within the legally mandated nurse to resident ratios.
In addition, an attorney compares the facility’s own medication administration records (MAR) to their billing records from the outside pharmacy for patterns of chemical restraint or missed doses.
Conclusion
It is imperative to establish a strong case against a care home that has failed to provide proper care in accordance with the statutory requirements. In Virginia, there is a two-year time limit for corporate negligence and medical malpractice claims stemming from a breach of duty in the care of a patient, which is the shortest time limit in the entire country.The statute of limitations for corporate negligence and medical malpractice claims stemming from a breach of duty in the care of a patient is strictly capped at two years from the date of the injury or discovery of the injury in Virginia, the shortest time limit in the entire country.
Taking time to obtain medical records, or having expert opinions written by licensed gerontologists and to audit corporate staffing sheets can be time-consuming, and a family may never be able to pursue legal action if they do not do so in a timely fashion. When they act quickly and decisively, it allows time to be preserved for critical evidence, violations to be identified at the facility and the rights of your family to be protected in a fair way of resolution.
