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What kind of proof do we need so that our family member has the right to bring a lawsuit over her substandard care in a nursing home? Are there federal and state claims available?
To successfully bring a claim for nursing home negligence, you generally must prove that:
• The nursing home had a duty to conform to a certain standard of conduct;
• The nursing home failed to conform to the required standard;
• An actual injury occurred; and
• There is a causal connection between the conduct of the nursing home and the injury
For example, in the nursing home environment, there is a duty on the part of the facility to care for its residents in a reasonable manner, according to standards in the nursing home industry. If the nursing home falls short of these standards, say by failing to give a resident the correct dosage of prescribed medication or even the correct type of prescription medication, the nursing home will have failed to conform with the required standard. When the medication error results in actual injury to the resident, the resident has a claim against the nursing home.
Nursing homes are extensively regulated and operate under federal, state, and local laws and regulations. The federal Nursing Home Reform Act (NHRA), part of the Omnibus Reconciliation Act of 1987, applies to all nursing facilities and their owners and operators who receive Medicare or Medicaid funds and covers nursing homes’ obligations to their residents. The NHRA requires that nursing homes support the maintenance or enhancement of the quality of life of each resident, as well as protect and promote the rights of each resident to a dignified existence and self-determination. Federal regulations also establish general rights to be free from verbal, sexual, physical, and mental abuse as well as discrimination on the basis of whether or not a resident receives Medicaid.
States (and sometimes local) laws also have provisions similar to the federal NHRA establishing standards for nursing homes and setting forth basic human rights due to all nursing home residents.
Proof of substandard care and/or that the poor care resulted in injury can be difficult. The way that you, with the help of an experienced attorney, can gather proof usually requires a request for all documentation related to the resident’s care as well as interviews with staff who may have been involved or may have been in the position to know what care the resident received. The resident, if he or she is able, can also provide crucial information regarding the care received. The legal process of uncovering the information you need to prove a claim against a nursing home can be complicated. It is best to consult with a nursing home attorney who has sued nursing homes before and knows the process and the legal system. |
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