Duty of Care Owed by Nursing Home Facilities

The legal duty of care by the facility and staff of a nursing home is usually defined and explained by experts. These cases are brought forward when a doctor, an administrator, a nurse, or a certified nurse technician come in to examine a particular case, and claim that the facility had a legal duty to care for the person and to provide them with a certain level of care. The expert will then determine if the facility breached that standard.

If you or a loved one has suffered from an insufficient duty of care owed by a nursing home facility, it is pertinent that you contact an attorney immediately. A seasoned lawyer will be able to understand all of the evidence at hand, and help maximize any possible damages.

Cases surrounding duty of care can often be a bit arbitrary, and many times a person will have experts on both sides arguing on whether the standard of care was met. There is not always a black and white answer in these cases, and a verdict can often be difficult to reach.

This does not mean that the facility must provide the highest level of services, but also means that they cannot get by with the bare minimum either. There is a standard of care that experts understand is necessary. The closest thing in defining the standard of care is when a person reviews the Nursing Home Reform Act, which says that in nursing homes the staff must provide services and activities to the resident so that the resident can maintain their highest practical, physical, mental, and psychological well-being.

Other than experience, the experts will rely on general standards, federal nursing home regulations, and will consider if the nursing home has a big enough staff to accommodate residents. Then, they can give a comprehensive and accurate assessment of the nursing home resident in order to determine what their functional capacity is. Further, an expert may ask questions like:

• Does the facility have a comprehensive care plan for each resident?
• Do they have a care plan that prevents the deterioration of the resident and their ability to care for themselves, to bathe, to keep clean, to eat, to go to the restroom, or to communicate?
• Does the facility keep the residents at the level that they should be to ensure that proper care is provided?

The court will want the resident to be able to take care of themselves and go through their activities of daily living.

The law provides that the residents should not develop pressure sores, and that if they develop pressure sores the facility will need to do something about repairing that situation or correcting that injury. This is to ensure that every resident is clean, well fed, and treated with respect and dignity. Also, all of the resident’s clinical records should be kept to prove that the facility was doing all that they could for the resident. From these observations, an expert can determine if the duty of care owed by the nursing home facility was fulfilled.

The standard of care between a hospital and a nursing home is generally the same, however, the situations are usually different. It is usually the situation and not the facility that dictates the duty of the case.

Both facilities have duties of care and are established the same way, but it is usually what is going on in these places that dictates what should or should not have been done in a certain situation. From there, an expert can determine whether any negligent or reckless behavior took place.

In addition to a nursing home owing you a duty of care, a nursing home must respect the rights of each resident. These rights are protected by a number of federal laws and acts. Whether you are a resident or the family member of someone living in a nursing home, you should know the rights that are afforded to every man or woman in an assisted living, long term care, or other care facility. These rights include:

• The Right to Be Fully Informed - It is your right to be informed of all services and their respective charges. You also should be informed of the rules of the facility, any advance plans of a room change or new roommate, how to reach your local Ombudsman, and survey reports from state agencies.
• The Right to Complain - It is your right to file a complaint without fearing reprisal. The facility has a duty to investigate and resolve the issue, or further the complaint to an agency.
• The Right to Participate in Your Care - You have the right to access your medical records at any time. You also should be able to know what is going on with your treatment and what any possible discharge plans might be. Finally, you have the right to refuse any treatment, medication, chemical or physical restraint.
• The Right to Privacy - During your care at a nursing home, you have the utmost right to privacy and confidentiality. At any time, you can choose who has access to your records, personal, and financial affairs.
• The Right to Respect, Dignity, and Freedom - At no time should you be mentally or physically abused, physically or chemically restrained, face corporeal punishment, or be involuntarily secluded from other residents. Your dignity belongs to you.
• The Right to Visits - It is your right to have visitors, including, but not limited to, your relatives, friends, physician, organization, a state agency, or anyone else. It is also your right to refuse visitors.
• The Right to Make Decisions - It is your right to make decisions. Whether it is what you will wear or eat, how your finances are to be managed, which doctor treats you, and so forth, the facility must accommodate any reasonable preferences.

The above nursing home rights are not exclusive. If you believe your rights have been violated, or a facility's duty of care has been breached, please call The Higgins Firm today.