All patients in nursing homes have the absolute right to be cared for in a manner that prevents injury and to receive care which ensures that a patient’s already infirm condition is not aggravated and made worse. However, in spite of special duties mandated by law, contract and promulgated rules, too many patients are injured through no fault of their own. People die in nursing homes. Sometimes, a death is expected. At other times, a death can be deemed “wrongful.” A wrongful death is defined as a death that is caused by the negligence of someone having a duty to protect. In other words, in all negligence cases—and in wrongful death cases– each of the following elements must exist in order for liability to attach:
- VIOLATION of that Duty;
- CAUSE – The violation must be the Cause of Harm/Damages; and
- HARM/DAMAGES Caused by the Violation of the Duty.
In a nursing home, the health care providers have statutory duties together with what’s called “common law” duties. In short, when it comes down to the final thrust, health care providers owe all of their patients the duty to ensure patient safety and comfort. If someone violates a duty, and if the violation causes a patient to be injured, then the injured patient can be compensated for the damages caused by the negligence of their caregiver.
In a nursing home situation, the caregivers must be free from negligence when caring for all of the patients regardless of a patient’s health. Nursing home employees must follow the numerous laws which protect patients from harm, and the employees must all follow Administrative Rules and contractual duties provided for in the contract between the patient and the nursing home. Nursing home policies and guidelines must also be followed by all employees who must be knowledgeable and trained so that these people can fulfill the duties imposed upon them by the law, the rules, and the nursing home contract. Clearly, the guiding bible of skilled nursing homes can be found in the State Operation Manual for Skilled Nursing. This manual clearly sets forth the rules, regulations, laws and common law duties that must be followed by those who take on the noble obligation of caring for citizens with serious impairments which must be monitored on a continuous basis.
When the lawyers at Gatti & Gatti take on injury or wrongful death cases resulting from care or the lack thereof in nursing homes, the lawyers are generally looking at the damage aspect of the four elements of negligence. We know that nursing homes have special duties. Duty is a given. But when a violation of the duty occurs, the lawyer must also look to see the nature of the damages caused by the injury. How old was the patient? Was the injury or death really caused by the violation of the duty, or was the injury or death an inevitable end to a long and fruitful life? Was someone injured or was the injury or death actually caused by a preexisting infirm condition?
There are many questions to be asked and there are many facts which must be objectively evaluated. The lawyers at Gatti & Gatti don’t take every case that we evaluate, but clients can be assured that when they call for an appointment and the case is discussed and evaluated, there is no charge for the consultation and personal evaluation. If the Gatti lawyers agree to take on a case, they expect to prevail and secure justice for the client. However, lawyers cannot guarantee a positive outcome. If we cannot take on a particular case, our attorneys will provide a reasoned explanation and will discuss the client’s best options under the circumstances.
Experience does tell us many things. Patients sometimes receive the wrong medication, and the results can be catastrophic. Medication may be mixed or forgotten, or incorrect dosages administered. Infirm patients should not be falling in the hallways, bathrooms, or from their beds. Exercise and movement are important to all patients who are capable, and every patient deserves respect and to be treated in a dignified manner. “No treatment” is only appropriate in limited circumstances, and a facility’s failure to train and supervise employees to ensure patient safety will not be tolerated.
Most nursing homes provide skilled nursing for specific patient needs, and those patients in need of skilled nursing should not be treated by LVN’s or aides who are not licensed or legally authorized to provide the prescribed medical care and services. It’s fair to say that a generation ago, older citizens were often not treated with the respect and care that the law now requires. Not all injuries or deaths can be avoided. The law does not always provide a remedy for every harm that befalls a citizen, and not every mistreatment case can be pursued. Each case lives or dies on its own individual facts and circumstances. Rest assured, the lawyers at Gatti & Gatti are willing and available to discuss and evaluate the facts and circumstances with each client or their family representatives.