If you have a loved one in a nursing home has been abused or neglected, you may have a claim against the facility that is housing them. Nursing home abuse and neglect can take a terrible toll on the elderly individual and the family of the loved one. While there can be early warning signs of abuse or neglect, often times there is none until it is too late. The ill-effects of abuse or neglect can lead to injury, hospitalization, and even death of the elderly family member. If an elderly individual is harmed, the facility may be sued in a civil action for their negligence.
When we talk about elderly abuse and neglect, it is helpful to understand how the law defines abuse and neglect. If you would like to read more about the Vulnerable Adult statute, please refer to RCW 74.34.020. Abuse means willful or non-accidental action or inaction that harms a vulnerable adult. This harm can be anything from intimidation, punishment, holding a person against their will, or inducting a physical, sexual, or mental injury.
Neglect occurs when a person or nursing home facility that has a duty to care for a vulnerable adult fails to act in a way that deprives the vulnerable adult the care needed for his or her mental or physical health.
As defined by Washington State law, a vulnerable adult is someone who is 60 years of age or older who lacks the functional, mental, or physical ability to care for him or herself, found incapacitated, has a developmental disability, has been admitted to any facility, or is receiving services from a home health, hospice, or home care agency licensed or required to be licensed by the state, receives services from an individual provider, or who self-directs his or her own care and receives services from a personal aid.
As a loved one, you do not have to monitor a vulnerable adult’s condition. Washington State has a Mandatory Reporters law, RCW 74.34.035, which requires professionals to report suspicions if they believe a vulnerable adult is a victim of abuse, abandonment, neglect or financial exploitation. Owners or employees of nursing homes, boarding homes, or adult family homes are considered mandatory reporters. If a Mandatory Reporter fails to report nursing home abuse or neglect, he or she may be guilty of criminal inaction. In addition, he/she may be found liable under civil law for damages resulting from the abuse or neglect.
Mandatory reporters are social workers, medical professionals, such as doctors, nurses, therapists, and the county coroner and medical examiner.
While nursing home abuse and neglect and take on a variety of forms, the most common are:
- bed sores or ulcers, including decubitus ulcers,
- broken bones,
- dehydration and malnutrition,
- infections, including urinary tract infections (UTI),
- sexual and physical abuse,
- medication errors, and
- patient wandering off the premises.
If you have a loved one who has one of these symptoms, call The Jackman Law Firm for a free consultation to discuss your options. Be aware, however, that in many nursing home cases, there are forced arbitration clauses. What is “a forced arbitration clause?” Fist, you need to understand the basics of arbitration.
Arbitration is a route that feuding parties can take while trying to resolve a dispute without the hassle of court. With arbitration, the two parties bring the dispute to an arbitrator or panel of arbitrators. Under RCW 7.04A.010, an arbitrator is “an individual appointed to render an award in a controversy between persons who are parties to an agreement to arbitrate.” The arbitrator gets to decide the rules and, after hearing evidence from both sides, decides the method of resolution. Unlike in a courtroom, arbitrators are not always required to stand by certain laws, such as consumer protection laws, and the decisions made during arbitration are kept private (rather than being published for public knowledge).
There are two general types of arbitration: voluntary and forced. Voluntary arbitration occurs when both sides of the dispute agree that arbitration would be better than going to court. Each side can be represented by a lawyer (RCW 7.04A.160) and has the freedom to gather their own evidence. Disputing parties may decide on arbitration due to its flexibility and efficiency in comparison to the court system, which can often be a confusing and drawn-out process. Forced arbitration usually occurs when a company or business requires its consumers or employees to waive their rights to sue (including the participation in a class action lawsuit), forcing any disputes to go through arbitration. Companies will often put these arbitration clauses in employee or consumer contracts, binding individuals to forced arbitration through the fine print of a long contract. While companies force their employees or consumers into arbitration, the company usually retains its right to sue.
Forced arbitration included in consumer contracts is common with businesses that face a large number of complaints, such as nursing home groups, insurance companies, or brokerage firms. Although arbitration can be cheaper than going to court, forced arbitration is rarely set up in a way that benefits the consumer or employee. Initiation fees, travel costs, and investigative expenses all work against the individual. Additionally, the loser often times has to pay the arbitrator’s fees. Although the arbitrator is supposed to be neutral in the dispute, that is often not the case. Arbitrators may be in favor of the company winning since companies often reuse arbitrators in their many disputes. In other words, the arbitrator has a personal financial interest in the company winning.
Arbitration is resource that is often times overlooked when handling legal disputes. It can act as a resolution process that is efficient, cost-effective, and flexible if both parties agree to that route. However, businesses can slip arbitration clauses into contracts, taking away employee and consumer rights to sue. Be aware of the fine print and always ask for legal advice if you have any arbitration concerns.
Making a Complaint: It Is Your Right
Nursing homes are regulated by the Department of Social and Health Services. The Department carries out certification, licensing, regulation, and regular oversight of all nursing homes. Under RCW 74.42 nursing homes are subject to extensive rules and regulations regarding staff conduct, resident rights, safety and security, medical procedures, sanitation, and a plethora of other categories regarding operation standards. The Department of Social and Health Services has the right to inspect any nursing home facility if there is a complaint. If you suspect abuse of an elder, you can report the incident or evidence to the nursing home administrator. The administrator must “investigate and report all suspected violations and any injuries of unknown origin within 5 working days of the incident to the proper authorities” (Medicare.gov). If you report your suspicions to the administrator and they take no action, you can make a report to Adult Protective Services directly either online or by phone (1-800-977-5456, https://www.dshs.wa.gov/altsa).
It is important to know that making a complaint against the nursing home is a protected right of facility residents and their guardians. Under RCW 74.42.050 “(2) A resident or guardian, if any, may submit complaints or recommendations concerning the policies of the facility to the staff and to outside representatives of the resident’s choice. No facility may restrain, interfere, coerce, discriminate, or retaliate in any manner against a resident who submits a complaint or recommendation.” Furthermore, under WAC 388-97-0460, a resident has the right to “contact, or provide information to the department, the long-term care ombuds, the attorney general’s office, and law enforcement agencies without interference, discrimination, or reprisal”, and may also not be barred from receiving information from these agencies.
Suing A Nursing Home: What You Need To Know
When filing a complaint against a nursing home with intent to sue, be warned that the process of suing a nursing home can be very difficult. While you can take that course of action with the help of an attorney, it is good to know in advance that suing a nursing home often comes with two major challenges. First, it can be hard to establish liability. In the nursing home setting you have private rooms, a staff that may not know the truth or is hesitant to come forward, and a victim that may not fully comprehend or remember the entirety of the situation. The timeline of abusive incidents can become fragmented and confusing. To make establishing liability easier, try gathering evidence when the alleged abuse becomes apparent. Take pictures of a new injury or closely monitor changes in behavior.
The second challenge in trying to sue a nursing home is the existence of forced arbitration clauses, often found in the fine print of resident contracts that are signed before one moves into a facility. Arbitration can be thought of as a private litigation system that is free from the courts. With forced arbitration for nursing homes, the party that signed the contract (the resident or their guardian) gives up their right to sue the facility for damages. Instead of going to court, the arbitrator decides the rules and, after hearing evidence from both sides, decides the method of resolution. Unlike in a courtroom, arbitrators are not always required to stand by certain laws, and the decisions made during arbitration are kept private (rather than being published for public knowledge). Arbitration costs are often placed on the elderly individual or their family, and the arbitrator may have financial incentive in siding with the nursing home.
Fortunately, the Centers for Medicare and Medicaid Services passed a new rule that bans forced arbitration clauses in any nursing home that receives funds from Medicare or Medicaid (nearly all nursing homes). The rule, to take effect November 2016, may not be beneficial to those already in contract with a facility, but it will give future residents more rights while holding nursing homes to higher standards in the public legal system.
Nursing home abuse may be one of the most difficult challenges that you and your family face. Finding out an elderly loved one has been mistreated is traumatic, and it often seems impossible to know what to do in the case of abuse. Please contact The Chris Jackman Law Firm if you have questions or suspect abuse of your loved one.