Nursing Home Liability Attorney Serving the Elderly of Chicago
Nursing homes and assisted living facilities are required to provide their clients with a particular level of care. That level of care is higher than the average person caring for a loved one at home, because these facilities must meet all medical and nursing home care industry standards set forth by the state and federal government.
If a patient or visitor is injured because a nursing home fails to deploy such care standards, then it may be considered negligent and legally responsible for the injury and all associated damages of that injury.
To determine if a nursing home is liable, however, you may need the assistance of a nursing home injury attorney. Determining liability in these types of cases is complex, and you must show not only that a duty of care was required, but also prove with an abundance of evidence that the nursing home breached that duty and the breach caused the injury or death.
The Basic Elements of Negligence Apply to a Nursing Home Case
Negligence is considered the failure to provide a standard level of care required by law or common sense. In a nursing home case, it typically means the inability to provide the standard level required by law and regulatory agencies. However, proving the case requires that you establish five critical elements.
- Legal Duty – First, you must establish that a legal duty was owed to you or your loved one who was injured. This legal obligation may be easy to establish if you are a client of the nursing home, and the nursing home had unsafe premises; in this case, it violated its duty of care for you.
- Duty was Breached – Now that you have established that a duty exists, you must prove that there was a violation of that duty. This means that the caregiver did not provide the reasonable care required, or he or she provided a substandard level of attention. This is often shown by comparing the actions of the facility or caregiver to the measures expected of others in the same industry.
- Proximate Cause – Next, you must establish that the breach of duty was the proximate cause of your injury. If there is no correlation between the type of breach and your injury, or they do not happen within a reasonable timeframe, you do not have a case. For example, if you suffer from an injury two weeks after, and that injury had nothing to do with the breach, it is not an issue of liability.
- Document Damages – You must document the costs associated with your injury and the negligent actions of the nursing home. That might mean medical costs and other financial burdens that you and your loved ones have endured because of the injury.
- Damages Correlate with Injuries – Suffering an injury and financial damage is not enough. You must also show that the damages encountered correlate with the severity of the injury and the treatments that you received were necessary, and that they were not the fault of a third party not mentioned in your lawsuit.
What Duty of Care Does a Nursing Home Have to Offer Residents and Visitors?
If you have a contractual arrangement with a nursing home for care and medical attention, the nursing home has legally accepted to provide you or your loved one with that care. It also accepts all liability for not adhering to those obligations.
Usually, you will establish the duty through the laws and regulatory agencies that oversee the nursing home. For example, most states, including Illinois, require that a nursing home facility provide medical care promptly, have a safe and sanitary environment, and ensure that nursing home abuse does not occur. Therefore, these duties are each separate acts of liability, and if they occur, the nursing home facility could be considered negligent.
Addressing the Issue of “Reasonable” Care Standards
One area that is difficult to determine is that of reasonable care, since reasonable is not necessarily defined in the statute. Proving reasonable care is not as easy as showing that there was a duty of care owed.
Instead, reasonable care is subjective, and every case will have varying levels of what is considered “reasonable.” Determining the reasonable care in your case may not be necessary, such as when abuse occurs. However, in other situations, it may be required that you show the reasonable care that you should have received versus what you actually received. This requires clear evidence showing that the nursing home facility administered unreasonable or substandard levels of care.
As the plaintiff, the burden of proof is on you. You must show by a preponderance of the evidence that the defendant was liable for your injuries and demonstrate how they provided an unreasonable level of care.
Evidence Used to Prove Liability
Various evidence can be used to help establish responsibility and indicate that a nursing home failed to provide reasonable care for you or your loved one. Some types of evidence that may apply to your injury claim include:
- History of Past Injuries – Sometimes, a negligent facility is one with a history of previous injuries and lawsuits from other patients. If that facility has a history of claims against it, this may help prove that it was likely negligent in your case, too.
- History of Citations and Fines – Because nursing homes are heavily regulated, they are subjected to frequent inspections by state, county, and federal agencies. Therefore, if they are found in breach of any requirements, they may have citations or fines issued to them. If your injury was the result of something the facility had been cited for in the past, it might make proving negligence easier.
- Eyewitness Testimony – Sometimes, there are witnesses to the event that caused your injury. For example, other residents saw your fall, which was due to inadequate supervision by nursing home staff.
- Video Surveillance Footage – Most nursing homes are deploying the use of video surveillance. While most use this to help reduce the number of unnecessary injury claims against the facility or staff, the evidence in those videotapes may prove your case.
- Expert Testimony – An expert may be able to testify as to the extent of your injuries and how they were likely caused. For example, a physician may testify about a loved one’s bed sores and state that the severity of the bed sores only occurred because the patient was not monitored or properly cared for. In this instance, the expert’s testimony shows the breach of standard care.
The Legal Obligation to Assess a Patient’s Health and Safety Requirements
The law requires all nursing homes to accurately evaluate their patients and ensure that their health and safety is addressed. This also includes creating an individualized plan that addresses all needs of the patient in his or her care. To ensure that a patient is not injured, the care plan should address areas like:
- The patient’s motor control
- Limitations on mobility
- Medications taken and how they affect the patient
- Impaired hearing and vision
If the facility does not create an individualized treatment plan, or if the chart indicates that the facility never followed up or adjusted the plan as the patient’s needs changed, the facility could be liable if that patient were injured as a result.
For example, a patient with mobility issues may require installation of cushioned surfaces, positioning grab rails for maneuverability, or other mobility aids. If the patient’s chart clearly indicates mobility issues, but the facility fails to provide aids or care that address the issue, then the facility is liable for injuries, illnesses, and deaths associated with that neglect.
Negligent Hiring and Employment
The employees of the facility could act negligently, and the nursing home could be found liable for the actions of its staff. If the facility knowingly hires someone who is under-qualified or does not adequately supervise staff, the nursing home could be liable through vicarious liability if an injury occurs – even if the facility operated with reasonable care and only one employee was negligent.
Is a Nursing Home Injury Considered Malpractice?
It may be hard to decide if nursing home injuries are medical malpractice or another form of bodily harm. Luckily, you do not have to worry about defining which area of personal injury law applies. Instead, you will meet with an injury lawyer, explain the details of your case and the injury, and then he or she will determine whether malpractice or another form of tort law applies.
Meet with a Personal Injury Attorney in Chicago About Your Nursing Home Injuries Today
If you or a loved one was injured in a nursing home, and you suspect that the nursing home was negligent, speak with a Chicago injury attorney at Malman Law immediately. Our personal injury lawyers are available 24 hours per day, seven days per week. We can assist you with your nursing home abuse or injury claim.
Schedule your free consultation now by calling our office or requesting an appointment online.