Helping an elderly relative move into an
assisted living residence can be an emotional and worrisome time for everyone
involved. When you or someone you know makes the decision to live in an
assisted living facility, you trust that facility to perform certain duties to
keep you healthy and safe. Because the elderly are expected to live longer and
longer lives as medicine progresses, one can expect to live in an assisted
living residence for a number of years. As one reaches the age of retirement
and beyond, their body grows more delicate and susceptible to infection and
disease. In addition, injuries resulting from falls can be devastating and may
affect the injured person for the rest of his or her life. Depending on the
situation, one might be able to gain compensation for injuries due to medical
malpractice or negligence by the assisted living facility.
First, it is important to make a clear
distinction between an assisted care facility and a nursing home. An assisted
care facility is one that provides housing, food, transportation, and in-house
monitoring to its residents. Assisted living facilities also develop individual
plans for each of their residents which are bound to change over time. On the
other hand, nursing homes provide skilled medical care to those who needs it
such as the disabled or ill. Nursing homes also provide housing and health
services. Like assisted care facilities, nursing homes also develop individual
care plans for their residence; however, these plans are largely medically based.
The difference between these two entities can be determined by the level of
medical care they provide. In the case of nursing homes, the failure to meet
the needs of a resident may result in liability under medical malpractice, negligence,
and/or New York Public Health Law § 2801 - d.
New York Public Health Law § 2801 - d
states that, “If the residential health care facility such, as a nursing home,
deprives a patient of any right or benefit he or she may have under the law,
then the institution is liable for any injuries that the patient suffers
because of the deprovation of any right or benefit.” This is includes any
benefits that are put in place for the wellbeing of the patient. This also
includes state regulations and requirements of health care facilities. If a
health care facility is found to be liable for patient’s injury, that patient
should receive compensation to cover the damages suffered. This payment will be no less than 25% of the
patient’s payments to the health care facility. At this point and time, this
law is most often applied to nursing homes.
Injures do occur at long-term residential facility. Some of the
most common injuries include those incurred from falls and bed sores. The risk
of infection causes bed sores to be particularly dangerous to patients. There
is a Quality of Health law that addresses bed sores and how facilities should
prevent and treat them. It states that when a patient without bed sores is
admitted into a facility, they are not to develop bed sores unless it was
unavoidable. If a bed sore does develop, it is a facility’s duty to provide
treatment to the patient for the purpose of healing it. Other claims can be
made based on emotional harm, financial loss, or death.
When disputing a claim, a nursing home or
long-term care facility must establish that they took every reasonable measure
to prevent the injury from happening. Before admitting a loved one into a
nursing home or long-term care facility, always inspect the environment in
which they will be living. Note the quality and care that residents receive at
the facility. In the resident’s room, take note of any loose rugs or objects
that stick out at odd angles. Make sure public areas and bathrooms of the
facility are well lit to minimize the chance of your loved one tripping and
suffering a serious fall. If you find a potential injury hazard, you have to
choices; either search for another residential facility or nursing home, or
notify the facility’s management of the situation immediately.
A nursing home or long-term residence
facility may also be held liable if they do not properly adhere to the
resident’s plan of care. If the needs of a resident are ignored, a facility may
be charged with neglect. Errors in providing medication, or providing the wrong
medication to a patient can result in a liability claim. Before admitting a
relative to a long-term residential facility, it is important to recognize that
he or she has the right to take legal action against the facility of they are
injured as a result of negligence, malpractice, or neglect. A facility can to
punish or otherwise discriminate against a resident for exercising their right
to take legal action. In some cases, a resident may not be able to act on his
or her own behalf due to mental or physical incapacitation. When this happens,
a legally appointed individual will act on the resident’s behalf. This individual should be someone who the
resident trusts and who is trustworthy, usually a close family member.
Currently, it is debated as to whether
claims of malpractice or negligence are appropriate when applied to nursing
homes. Claims will vary from case to case, but standard rule is that
malpractice claims address the actions of medical care professionals or medical
procedures. For example, incorrect medication distribution would most likely
fall under a medical malpractice claim. On the other hand, if a patient trips
on something that could or should have been moved out of their path, a
liability claim would most likely fall under negligence.
When defending a negligence claim, one
must prove that the facility owed a duty to the resident and failed to fulfill
it. Medical malpractice claims are slightly more difficult to apply to
long-term care facilities because an attorney must consult and obtain
documentation from a medical expert or an appropriate physician clearly
indicating why the facility is at fault.
If you are seriously considering admitting
a loved one into a long-term care facility or a nursing home, remember that the
wellbeing and health of that loved one depends on the quality of care they
receive at the new residence. It is not a decision to be made lightly and
involves a great amount of trust on the resident’s behalf. If you or a loved
one have suffered an injury at a nursing home or long-term care facility, you
may be able to receive compensation for these damages. For more information,
contact Poissant, Nichols, Grue, and Vanier at:
367
West Main Street
45 Market Street
Malone,
New York 12953
Potsdam, New York 13676
Phone:
(518) 483-1440
Toll
Free: 1-800-924-3529
-Joseph
Nichols
-Paul
Nichols
At Wagners our entire team has a proven track record for cases involving motor vehicle accidents, fatalities, medical malpractice, birth trauma and other serious incidents.
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