Welcome to another edition of Facebook Live for Claim Your Justice. The purpose of these Facebook live sessions is to educate the Facebook community and our future clients about their rights. Today, we are going to talk about nursing home cases.
This is a very near and dear topic to me right now because I have an elderly relative who is in the process of moving from independent living to a nursing home. It’s a sensitive topic because things, sometimes bad things, happen when your loved one is in a nursing home. I figured it was a perfect opportunity for me to discuss this.
For any personal injury claims, make sure you reach out to Claim Your Justice, you can reach us on the web at ClaimYourJustice.com. Or you can reach us by telephone at 847-434-3555. I am lucky enough to be assisted today by Jessica Wong Barrera, she did such a wonderful job last time we invited her back. Jessica, you have some questions that we discussed that we think will be helpful to the Community. Let’s roll.
Q: Are there separate rights that apply to residents in nursing homes?
A: Yes. We generally have the same rights for injury cases when it comes to a slip and fall case, a car accident case, a wrongful death case, and so on. However, nursing homes are governed by the Illinois Nursing Home Act, and the Nursing Home Act provides a certain set of rights statutorily. So, when you have an auto accident case, it’s based on common law, negligence, duty breach of duty, proximate cause, and damages.
In every case everywhere in the United States, those are the analyses that need to be made. In Illinois, the Nursing Home Act provides certain rights that you have statutorily that you may not have if you are just at an independent care living facility. In a nursing home, you have a right to make sure you get your mail, make sure you have access to a telephone, and make sure you can get visitors. That is important.
You also have a right to see your own doctor if you have health insurance or money to pay at your expense. Those are two significant rights that are vested by the Illinois Nursing Home Act. Of course, you have a right to be free from abuse and neglect. Those terms of abuse and neglect are defined within the Illinois Nursing Home Act. That is another right you would think is a given. However, this is because it’s by definition, and there is a push and pull between the nursing home lobby that can only do certain things and the residents who need to make sure they have an enhanced level of care.
Q: Is there a definition of what exactly a nursing home includes?
A: If you are in a facility with more than three residents who are not related, that facility will be defined as a nursing home. Now I know three seems like a small number and you’re not going to have a nursing home with such a small population of residents. Some of these nursing homes have 200 residents. There is one not too far from my house, they may have 300 residents there. By definition, it is more than three people in a facility where the staff is charged with keeping and taking care of the residents.
Q: Is there a number one reason why many residents of nursing homes are injured or otherwise harmed?
A: I think we’ve all heard scenarios where elderly people suffer bed sores, and the number one source of injuries that are suffered by residents of nursing homes would be bed sores. Now bed sores are what we call them. However, medically and from a nursing perspective, they are called pressure ulcers. It’s a painful condition. It happens frequently because the patient is not as mobile.
Sometimes they are seriously medicated, and they can’t move around as much. They’re lying in the same position for some time and the body’s reaction to that is to form a pressure ulcer. The injuries can become quite dramatic as they progress to a certain degree, and they can become infected. To answer your question, the number one type of injury would be a bedsore pressure ulcer.
Q: What types of injuries are common to nursing home residents?
A: Well, you have a person who trips and falls. Listen, I’m in my 50s, and there are times, on certain terrain, I feel like I could trip and fall. These fall-down cases are common in nursing homes. Someone may need a walker, they don’t have a walker, they try and walk, and they fall. Someone may be walking with a walker, and there’s an obstruction in the floor that shouldn’t be there which causes them to trip and fall. Or it could be that situation with a cane.
The number one injury we see is pressure ulcers. Number two is the fall-down cases. Some of the falls can be really bad, you never want to see an 80-year-old man or woman needing to undergo hip replacement surgery. That is not something you want your relative to have to go through just because they were not properly cared for. Sometimes in the fall-down cases, it could be that the resident should have had the side rails up on their bed and the nursing home perhaps forgot to raise the side rails, and the resident falls out of bed.
You can have all sorts of injuries. If a person is at the level where they need assistance going to the bathroom, and the proper lift is not available, you could have an injury where someone is going to the bathroom and falls. Other types of injuries you could have are when the proper medication is not administered. Either the wrong medication is given, the medication is not given to the patient at the recommended time, or the wrong dosage is given. You have got the bed sores, you got the fall down cases, you have got the failure to administer the proper medication. Those are probably the three that we most commonly see.
Q: Can you talk a little more about elder abuse? We’ve talked about lack of treatment, but what about elder abuse?
A: First and foremost, elder abuse is terrible. Elder abuse is common. The case I referred to just a few minutes ago was in the news recently. There is a nursing home in Texas, the family is concerned about the care that their relative is getting so they install a surveillance camera in the relative’s room. They get a call from the nursing home saying that their relative was injured and fell out of bed. Well, what they see in the video is that after he fell out of bed, he was abused by the staff while getting back into bed.
There was a lawsuit, and there was a big multi-million dollar recovery made because of the elder abuse. Part of elder abuse and this is a topic I meant to cover earlier, is that there is a staffing issue. Every day in the news we hear that there is a nationwide staffing shortage. It is a problem in nursing homes because many of the injuries that are suffered by residents are injuries that may not have happened if there was proper staffing.
Staffing shortages can look different. One example could be when they do not have enough people on staff. The second could be when they hire a staff member who is not properly qualified, not properly supervised, and not properly trained. I would consider that a staffing shortage because you do not have the right person on the job. This case in Texas was a true elder abuse case, the elderly resident or their family is paying to be in this nursing home, to get the proper care, to get the proper staffing, and they don’t get that.
Then worse, you could have a resident of the nursing home being sexually abused. There are some sick people out there. Sometimes they find their way into the wrong situations, wrong employment systems, and wrong employment roles, and you could have a relative who’s sexually abused. It’s disgusting, the nursing home is certainly responsible. With elder abuse, you could have physical abuse, sexual abuse, and you could have some type of mental abuse. Mental abuse for example where a caretaker refuses to care for the resident unless the resident acts a certain way. That’s abuse, and that can turn into malnutrition for the resident.
Q: What does the average settlement in an elder abuse case look like?
A: These cases have a wide range in terms of the value you will see. You have the basic elements of damages, you could have the additional medical bills that are required for an injury that a resident suffers, and you certainly have pain and suffering, which is a common ingredient for any personal injury case. Also, you may have a disfigurement. We talked a moment ago about the case where the person fell, broke their hip, and needed a hip replacement, they may have a limp that they didn’t have before, they may need a cane that they didn’t need before, they need may need more personal assistance that they didn’t need before. Disfigurement is a big issue.
That also connects with the loss of normal life. Before they fell and needed a hip replacement, they may have been able to walk around the nursing home themselves without any assistance, but with the replaced hip they now need to have some regular and frequent assistance. A lot of it depends on the type of injury. Then, if a person who’s in their 30s has a very serious injury, now that person is going to have to live with that serious injury for the normal life expectancy, let’s call it 72. So that’s 42 years of living with this serious injury.
Now, unfortunately, the value of these nursing home cases is sometimes reduced because a person cannot have a shortened lifespan because of their age. The nursing home may say that person had a debilitating disease, and a medical expert would say they only had three years to live, so that could reduce the value of the case. Then you also have something that could increase the value of the case, which is the history of the care provided by the facility. If you can show a pattern of neglect by the facility. If they’ve had 10 cases in the past several years, we would argue that shows they have gross negligence, which would increase the value of the case. Anything else?
Q: Is the nursing home insured, and does that have anything to do with the settlement?
A: Terrific question. I was talking to another lawyer this weekend and he settled a case where the nursing home went into Bankruptcy. For whatever reason, the nursing home was driven into bankruptcy, and there was a limited amount of money. So the payoff for that person’s client was through bankruptcy. There is generally insurance, but as we’ve talked about in previous Facebook Live sessions, sometimes insurance isn’t enough.
It’s difficult enough to find the right nursing home fit for your relative. but that’s a question you might want to put on your checklist before you admit your relative into a nursing home. Ask about financial viability. Does this facility have one location or 10 locations? It may be a bit of an odd question, but it is your relative, you need to give maximum care and attention to that relative.
If you, a family member, a friend, or anyone you know is injured in an accident. Let Claim Your Justice help those people claim their justice. You can reach us on the web at ClaimYourJustice.com or by phone at 847-434-3555. Thank you and have a successful week.
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