Nursing Home Malpractice Lawyers in PA
Types of Nursing Home Abuse or Neglect
Neglect or abuse in a nursing home setting can take many forms. It can involve the physical, mental, emotional, financial, or social well-being of the resident.
Some of the most common forms of abuse and/or neglect include:
- Far and away, the most frequent circumstances we see in these cases are falls related to inadequate fall risk evaluations or understaffing. Those falls usually result in hip or wrist/arm fractures that significantly limit the person’s ability to care for themselves and therefore results in significant extra long term cost of care.
- Malnutrition – failure to provide proper nutrition. There are many different possible causes for malnutrition, like a patient’s swallowing disorder or inability to absorb nutrients, depression, or medication-related digestive issues. Malnutrition could also be caused by poor monitoring of the patient’s food intake, reliance on liquid dietary supplements, or staff not realizing a patient needs help feeding him or herself. In many cases, malnutrition is avoidable.
- Dehydration – failure to provide proper hydration. Again, there can be many different possible causes for dehydration. Like malnutrition, dehydration is often avoidable.
- Failure to assist in personal hygiene. This can lead to both physical problems and emotional issues. A related issue is failure to assist a resident with toilet use. Leaving a person in soiled garments or in a soiled bed can cause health issues and emotional issues.
- Medication issues. Over-medication and under-medication are both dangerous.
- Failure to provide appropriate medical care. This could include refusal to call or consult a doctor, ignoring requests for help, or refusal to treat an injury or illness.
- Failure to prevent falls, or take other precautions to prevent physical injury to residents.
- Use of unwarranted physical or chemical restraints. Federal and state laws permit the use of physical or chemical restraints only if ordered by a physician and only for a limited time in order to protect the patient (or other patients) from injury.
- Failure to turn the older adult in his or her bed. This can lead to bed sores or pressure sores.
- Shaking, slapping, or other physical abuse.
- Emotional or verbal abuse, like cursing, yelling, or ignoring the patient.
- Sexual assault of the older adult.
- Theft of the older adult’s money or property.
- Failure to answer calls for help in a timely manner.
- Any retaliation for a resident making a complaint or filing a grievance.
- Isolation. This can include purposely isolating the older adult from visitors or other social activities.
This list is not comprehensive. Abuse and neglect can take many forms. It can be difficult for the older adult to discuss issues of abuse or neglect for a variety of reasons – emotional reasons like embarrassment or anger or cognitive causes like dementia or Alzheimer’s disease. It is often up to someone other than the resident to take notice of signs of neglect or abuse.
Neglect may or may not be intentional or deliberate; abuse is almost always deliberate. In either case, residents of a nursing home or other care facility deserve to be treated with dignity, respect, and competence.
A resident or family member has the right to express their concerns to the nursing home director, facility manager, or ombudsman.
Nursing Home Malpractice Attorneys
If you believe a family member or loved one is being abused or neglected in their care facility, assisted living, or nursing home, contact Philadelphia attorneys Villari, Lentz & Lynam, LLC. They stand ready to investigate and pursue all available civil damage remedies. Call (215) 568-1990 or complete the short form to the right.
The Medical Malpractice Claim
The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient’s estate.
The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.
A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.
A. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
B. A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or the thing speaks for itself).
C. The breach caused an injury: The breach of duty was a proximate cause of the injury.
D. Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.
Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified “just because somebody with a diploma says it is so” (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:
The more common (and some believe more reliable) approach used by all federal courts and most state courts is the ‘gatekeeper’ model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 ), General Electric Co. v. Joiner (522 U.S. 136 ), and Kumho Tire Co. v. Carmichael (526 U.S. 137 . Before the trial, a Daubert hearing will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:
- Whether a “theory or technique . . . can be (and has been) tested”
- Whether it “has been subjected to peer review and publication”.
- Whether, in respect to a particular technique, there is a high “known or potential rate of error”
- Whether there are “standards controlling the technique’s operation”.
Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule’s incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.
In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical. A problem with Daubert is that the presiding judge may admit testimony which derives from highly contested data. The judge may expand the limits contained in the “school of thought” precedent. Papers that are self-published may be admitted as the basis for expert testimony. Non-peer reviewed journals may also be admitted in similar fashion. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training.
Many states also require that a certificate of merit before a malpractice lawsuit is filed which requires a report from a medical doctor that the doctor accused of negligence breached the standard of care and caused injury to the Plaintiff.