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What Are the Different Kinds of Nursing Home Abuse Claims?

SOURCE: Dolman Law Group

Statistics generated by government oversight reveal that nursing home abuse is a serious and persistent problem in the Sunshine State. Florida’s Agency for Health Care Administration (AHCA) oversees compliance with federal and state laws about nursing care facilities in Florida that accept Medicare and Medicaid (which comprise all but about two percent of homes). The agency rates each facility after an unannounced yearly inspection that lasts up to five days. Each nursing home is given an overall rating from one to five stars; inspectors look at quality of care, quality of life, and administration.

The most recent inspections of the 13 nursing homes in Clearwater reveal nine facilities that are rated three stars or less. Out of the 70 nursing homes in Pinellas County, 29 have major deficiencies with one or two stars. Clearwater is home to seven of those facilities. These startling statistics reveal that even with regular inspections, laws that protect elders, and laws that govern nursing homes, elders who reside in Florida’s nursing homes face an ever-present risk of abuse.

Nursing home abuse is an umbrella term that refers to various wrongful actions that can harm elders who reside in nursing care facilities. This guide will offer some broad information on the five main types of nursing home abuse claims, the two alternate paths which you may take to recover damages after abuse, and what you should do if you suspect that an elder you love has been or is being abused in a Florida nursing home.

Physical Abuse in Florida Nursing Homes

Under Florida law, the crime of physical abuse of a nursing home resident includes:

• Intentional physical harm;
• Intentional action that has a reasonable expectation of resulting in physical harm; and
• Actively encouraging another party to cause harm against a nursing home resident.

When abuse is severe, a prosecutor might charge a perpetrator with “aggravated” abuse. Florida law defines aggravated abuse of an elder as:

• Aggravated battery
• Torture, punishment, or caging
• Abuse that results in severe harm, permanent disability, scarring or disfigurement

Examples of physical abuse in a nursing home include:

• Shoving or pushing a resident
• Slapping, spanking, punching, or hitting a resident
• Kicking a resident
• Denying a resident food and water or forcing them to eat
• Excessive or improper use of restraints

Victims of the crime of nursing home abuse may also be entitled to seek civil damages. The type of crime a defendant is charged with committing is relevant in a civil case, because the severity of the crime may also affect the amount and type of damages the victim can recover. Florida courts can award punitive damages, for instance, in cases of intentional harm.

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Neglect in Florida Nursing Homes

Neglect is the most common type of nursing home abuse in Florida and across the nation. It is also, according to the Nation Center on Elder Abuse, the least reported type of abuse. Under Florida law, neglecting an elder includes:

• Not providing for the basic physical and mental health needs for an elder. In a nursing home, neglect is often committed by certified nursing assistants charged with caring and supervising residents.

• Not protecting an elder from abuse or neglect by another person.

Neglect, unlike physical abuse, isn’t always a specific event. Instead, it can include repeated failures to act that, over time, cause harm to a resident, such as:

• Not providing food or water
• Not supervising residents, leading them to injury
• Not providing needed medication
• Inadequate access to medical service or dental care
• Not caring for residents that are incontinent
• Not providing adequate aftercare for wounds
• Not helping residents to the toilet
• Turning off a call light without addressing their needs

Sexual Abuse in Florida Nursing Homes

Nursing home residents in Florida and across the nation also face the risk of sexual abuse. The National Consumer Voice for Quality Long-Term Care reports that most sexual abuse in nursing homes occurs between residents, although sexual abuse of residents by nursing facility staff also occurs. Like other types of nursing home abuse, incidents of resident-on-resident and staff-on-resident sexual abuse go severely under-reported. This does not excuse state and local governments, nursing home operators, and others from taking steps to protect elders in nursing homes, however.

Under Florida law, perpetrators who commit a “lewd or lascivious” offense against an elder or in his or her presence when the elder doesn’t consent or isn’t capable of consenting will be charged with a criminal act. The following sexual acts against a nursing home resident constitute a felony crime in Florida:

• Forcing or encouraging a resident to engage in sadomasochistic abuse, bestiality, prostitution, or other sexual activity

• Intentional touching or molestation, clothed or unclothed, of breasts, genitals, and the genital area

• Intentional masturbation, exposing of genitals, or sexual activity in the presence of a resident who cannot consent or fails to give consent

Emotional Abuse in Florida Nursing Homes

Emotional abuse, sometimes referred to as psychological or mental abuse of a nursing home resident, often goes hand-in-hand with physical abuse and/or neglect. Even when it doesn’t, residents who have been emotionally abused exhibit the same psychological symptoms and warning signs as other types of abuse. Many assume that emotional abuse is only verbal in nature, but those who emotionally abuse nursing home residents can do damage without speaking a word. Some examples of emotional abuse include:

• Raising one’s voice to scream, yell, or curse
• Making threats against the elder, his or her friends, or his or her family
• Chastising or scolding a resident
• Name-calling
• Hiding a resident’s property
• Humiliating the resident in front of others
• Isolating the resident from other residents, family members, and friends
• Ignoring the resident or giving them the silent treatment

Sometimes a staff member might have a bad day and lash out at a resident unintentionally abusing them; in other cases, the abuse is blatant and intentional. In either case, emotional abuse directly targets a person’s psyche. Unlike physical abuse, victims are unlikely to incur physical injury stemming from emotional abuse, at least not initially.

As a consequence, caregivers must stay keenly tuned-in to an elder’s behavior to notice the symptoms of emotional abuse. Elderly victims may hesitate to report emotional abuse because it is difficult to prove, particularly when an elderly victim shows signs of dementia or other common mental health conditions typical in old age. A skilled personal injury attorney who has dealt with nursing home abuse cases can elicit expert testimony to help build a case when you know emotional abuse has taken place.

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Financial Abuse in Florida Nursing Homes

The United States Securities and Exchange Commission (SEC) estimates that elders in New York lose more than $109 million per year because of financial exploitation. Accurate estimates for Florida or other states aren’t available, but the SEC knows that financial abuse of elders is rampant because of increasing reports each year. Those who suffer from dementia and Alzheimer’s disease have the greatest risk of exploitation because of their reduced mental capacity. Under Florida law, the exploitation of an elder in a nursing home includes the following:

• Temporarily or permanently depriving a resident of their assets, funds, or property, especially when one knows the resident lacks the ability to consent

• Misappropriating or misusing funds as well as stealing cash, checks, credit/debit cards, and making unauthorized transfers

• Failure to use a resident’s funds to provide what they need for support and care

Seeking Damages in Florida Nursing Home Abuse Cases

Many people assume that nursing home abuse cases are medical malpractice claims and will, therefore, be more difficult to prove than some other types of personal injury claims. While understandable, these concerns are misplaced. Although some cases of nursing home abuse can amount to medical malpractice, the vast majority of them constitute “routine” negligence or intentional tort (assault, battery, etc.) claims that are relatively easier for lawyers to assert and prove.

An April 2018 Florida Supreme Court opinion provided long-needed clarity about the difference between ordinary negligence/intentional tort claims and medical malpractice claims. The case (National Deaf Academy, LLC v. Townes) involved a victim who was injured by a bed restraint while admitted to a hospital. The Florida Supreme Court ruled that it was an ordinary negligence claim because any member of the medical staff could have removed the restraint, even though a nurse placed the restraint on the victim. In its ruling, the court clarified that a wrongful or negligent act in a medical facility doesn’t automatically translate into medical malpractice.

An experienced personal injury attorney who has dealt with nursing home abuse cases can advise elderly victims of nursing home abuse and their families about the appropriate legal action for their unique circumstances. Generally speaking, their options may include:

Ordinary Negligence/Intentional Tort Claim

If you or a nursing home resident you love suffered abuse in a nursing home setting, you generally have four years to take legal action under Florida law. When you file suit alleging negligence or intentional wrongdoing, you bear the burden of proving that the abuse occurred and who should be held responsible. Proving these claims typically involves showing four criteria:

Duty of care. The abuser or someone responsible for the abuser’s actions owed a duty of care to the nursing home resident. In Florida, virtually all nursing homes and their staff have a legal duty to provide a standard of care to residents.

Breach of duty. The facility and/or the abuser breached his or her duty to the victim when they abused, neglected, or exploited the resident.

Causation. The alleged abuser’s breach of duty caused harm, injury, or loss to the nursing home resident.

Harm. Strongly related to causation, the resident must have been harmed by the abuser’s breach of duty. This may be financial loss, emotional harm, physical injury, or any other damage or loss.

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Medical Malpractice Claim

When nursing home abuse constitutes medical malpractice, the law is different. Medical malpractice victims generally must take legal action within two years from the time of the incident, discovery of the injury, or when due diligence should have revealed the injury. According to National Deaf Academy, LLC v. Townes, medical malpractice claims have two core elements:

• Medical diagnosis, medical treatment, or care must have led to the negligent act or omission.

• A healthcare professional must have provided the diagnosis, treatment or care.

Florida, like many other states, has attempted to limit lawsuits against doctors, hospitals, and other healthcare professionals by instituting pre-litigation procedural requirements for medical malpractice claims. Among other tasks, a lawyer who intends to file a medical malpractice claim must first obtain a notarized opinion from a medical expert who certifies that the client has “reasonable grounds” for a lawsuit, and then initiate a pre-litigation investigation of the matter by giving notice to the party who committed malpractice. Only this investigation has run its course and resulted in an unsatisfactory outcome can the attorney then file suit in Florida courts.

Take Immediate Steps When An Elder You Love is Being Abused

If you suspect a friend or family member has been or is being abused in a nursing home, your first priority must be to stop the abuse. Take these steps once you learn of abuse:

Notify the facility administrator in writing of the abuse providing a detailed record and keep copies of any response.

File a complaint online with the Florida Department of Children and Families (DCF). You may also call the abuse hotline at (800) 962-2873.

Keep all receipts and bills related to the abuse. This may include medical treatment, cost of transferring to another nursing home, account statements that show financial abuse, and anything else that will support your case.

Contact a reputable nursing home abuse attorney who can help you pursue the compensation you deserve and hold the abuser(s) accountable.

Get the Legal Help You Need for an Elder that You Love

Placing a loved one in the care of a nursing home is a difficult reality for many families. Elders deserve to be treated with dignity and care when they reside at a nursing facility. When facilities, medical staff, or caregivers fail to uphold their duty of care towards residents, it devastates victims and their families.

If an elder that you love has been abused, an experienced Clearwater nursing home abuse attorney can help you seek damages and hold abusers accountable. Contact the nursing home abuse attorneys at Dolman Law Group Accident Injury Lawyers, PA in Clearwater at (727) 451-6900 to discuss how they can help.

Dolman Law Group Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765
727-451-6900

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