Common Defenses Used by Nursing Homes in Abuse Lawsuits

Garcia & Artigliere has obtained more than $3 billion for our clients, including nursing home clients. One of the key reasons for a strong record of success is that we anticipate the defenses that nursing homes are likely to assert – and we take steps to show why those defenses lack merit. The specific defenses vary in each case. Some of the more common defenses nursing homes assert include the following:

Compliance with licensing standards

According to the California Advocates for Nursing Home Reform (CANHR), certified nursing homes (in return for payments from Medicare and Medi-Cal programs) agree that each resident should have the best care possible, The federal Nursing Home Reform Act of 1987 requires that nursing homes have the “highest practicable physical, mental and psychosocial well-being.”  Most California nursing homes participate in at least one Medicare or Medi-Cal program. Similar agreements to provide quality care are common in most other states including Arizona, Kentucky, and Louisiana.

Nursing homes often claim that they cannot be liable for abuse or neglect if they meet these minimum standards. That’s not accurate since the standards are a minimum, not a maximum. Government standards don’t guarantee competent care.

Our skilled nursing home lawyers regularly work with nursing home professionals to prove:

• The minimum standards were not met
• The nursing home should have taken specific steps to prevent harm to your loved one – even if the minimum standards were met..

There are common care standards for the following:

• Accommodation of needs
• Adequate staffing
• Bed rails
• Behavioral health care
• Call systems
• Care planning
• Continence and help with toileting
• Dementia care
• Dental, vision, and hearing care
• Feeding tubes
• Fluids and hydration
• Food and nutrition
• Hospice care
• Infection control
• Medications, unnecessary drugs, and chemical restraints
• Pain management
• Personal care
• Physician services
• Pressure sores
• Quality of life
• Refusing care
• Respiratory care
• Safety and preventing accidents
• Therapy services and mobility care
• Trauma-informed care

A pre-existing condition

Most residents already have some physical and/or cognitive challenges before they enter a nursing home. In fact, that’s why many residents enter nursing homes – so that someone can help the residents with their medical challenges. Nursing homes will often assert that any injuries or ailments were present before entering the nursing home, or before alleged acts of abuse or negligence.

We contest these challenges in several ways:

• The nursing home made the pre-existing condition worse. We assert that the nursing home knew your loved one had certain physical or mental health disorders – and that the nursing knew it had a duty not to make those disorders worse by failing to treat them or by intentionally or negligently making those conditions worse.
• The injury is due to a new condition; not a pre-existing condition. We assert that your loved one’s health disorders are not due to any pre-existing conditions – they’re new health disorders that the nursing home should have prevented or taken care of.

We work with your loved one’s doctors and our network of doctors to fully review how your loved one’s injuries/illness started and how it progressed.

The nursing home resident was negligent

The nursing home resident may try to argue that your loved one was just clumsy, refused to take their pills when given, or committed other acts (or failed to do certain acts) that caused them harm. Generally, we counter this nursing home defense by arguing that the nursing home should have anticipated the negligence of the resident and taken certain steps to prevent it. For example, most falls are preventable if the nursing home regularly inspects their facility for dangers such as loose tiles, wet floors, accent rugs that can cause tripling, cables, and loose railings.

Generally, the defense of a resident’s own negligence lacks any merit when the resident has dementia or Alzheimer’s.

The nursing home isn’t responsible when staff members commit intentional acts

Generally, nursing homes are strictly liable for the negligent acts of their employees. This means if a nurse or any member of the staff fails to give your loved one their medications, fails to move them so your loved one doesn’t get bedsores, fails to feed them, or fails to tend to your loved one if there are stroke symptoms – or any other failure – the nursing home is liable because the staff member was negligent.

Generally, the same idea applies to acts of abuse – that is, the nursing home should be liable if a staff member commits abuse. Nursing homes may assert that they can’t be held strictly liable when staff members break the laws for intentionally failing to follow any nursing home policies. Whether the nursing home is strictly liable for intentional misconduct by an employee can be complicated. In many cases, we also assert that the nursing home is liable for other reasons (other than being strictly liable). For example, we may argue that the nursing home failed to vet the staff member for any prior complaints or any new complaints.

The statute of limitations

Each state has a time limit (called a statute of limitations) that determines the outer time limit for filing a nursing home abuse or neglect claim. In California, nursing home claims for personal injury and the wrongful death of a loved one must be brought within two years of the date of the abuse or neglect.

We can help you determine what the start date of your claim is. We urge you to contact our office as soon as possible after any nursing home abuse or neglect occurs.

Delay

Sadly, some nursing homes try to take advantage of your loved one’s age and poor health by delaying your claim as much as possible. Their hope is that the resident will agree to a reduced settlement because they may not have many years left – or that the claimant may actually die.

Our nursing home lawyers work aggressively to ensure nursing home claims are filed as quickly as possible and that all evidence of the abuse or neglect is properly obtained and preserved.

If a parent, spouse, sibling, or anyone you love is suffering due to nursing home abuse or neglect, contact Garcia & Artigliere. We’re respected by former clients, insurance companies, and defense lawyers for our strong advocacy, compassion for clients, and our impressive record of results. Call our office or complete our contact form to schedule a free consultation today. We have offices across America  – in Los Angeles, Phoenix, Long Beach, Louisville, and New Orleans.