Legal Remedies to Nursing Home Abuse and Neglect
By Ted Sherwood
Claims for personal injury or death against nursing homes can arise under a variety of circumstances including intentional physical abuse, wandering away, tortious actions by third parties, or more commonly, the failure to render appropriate nursing care. Common factual allegations in “nursing care” cases include failure to prevent development or worsening of decubitus ulcers (bed sores), failure to train properly the nursing staff, failure to supervise properly or restrain a resident (resulting in a fall or other injury), dehydration, malnutrition, failure to render prompt medical aid or to call a physician and understaffing. Any of several legal theories may be appropriate in a given factual situation.
Statutory Tort
Depending on the underlying facts, a claim against a nursing home may be based on either statute or common law. The Nursing Home Care Act (63 O.S. (1991) § 1-1901, et seq.) provides that the owner and licensee of a nursing home are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident. The Act sets forth both general and specific duties imposed upon a nursing home. For example, the Act requires that every resident shall have the right to have adequate and appropriate medical care,16 and that every resident shall be free from mental and physical abuse.
Other significant features of Oklahoma’s Nursing Home Care Act include:
- The facility must retain for public inspection a complete copy of every inspection from the Department (OSDH) during the past three (3) years;
- Every resident shall have the right to present grievances with respect to treatment or care without fear of reprisal or discrimination and to join with any other resident to work for improvement in resident care;
- Every resident shall have the right to receive courteous and respectful treatment;
- A facility shall not involuntarily transfer or discharge a resident except for medical reasons, for the resident’s safety, for the safety of other residents, or nonpayment;
- Any waiver by resident or his legal representative of the right to commence an action under this section is null and void.
The Supreme Court’s decision in Morgan gives teeth to the Nursing Home Care Act because a nursing home owner or operator can be held liable for wrongful conduct that does not cause injury or death but is a source of continuing distress or irritation to the resident and his or her family. For example, if a nursing home administrator threatened to discharge a resident whose family had complained about substandard treatment, the nursing home owner would be liable for violation of the Nursing Home Care Act even though no physical injury occurred to the resident.
Negligence Per Se
The duties imposed by Oklahoma statutes are in addition to the duties imposed by common law. Therefore, if a jury found that the employees of a nursing home violated the Oklahoma Nursing Home Care Act and that violation caused an injury to the resident, that violation in and of itself would be negligence.
In addition to the provisions of the Nursing Home Care Act, OSDH has adopted and published “Regulations for Licensure of Nursing and Specialized Facilities.” These regulations impose additional requirements for nursing and personal care services, incident reports, assessments and care plans, and other treatment issues. Under Oklahoma law, the failure to perform a statutory duty constitutes negligence per se, if the other elements of actionable negligence exist. Although there appears to be no published decision from an Oklahoma appellate court applying regulations regarding nursing homes and finding negligence per se, other jurisdictions have been willing to do so.
Also, statutory duties applicable to those facilities accepting Medicare or Medicaid payments were included as part of OBRA, which became effective October 1, 1990. Additional regulations concerning such things as prevention of bed sores23 have been admitted in evidence in claims against nursing homes.
Common Law Negligence
A nursing home, or its proprietor or owner, may be held liable under general principles of tort law for negligent acts or omissions regarding the care of its residents. The degree of care that a private nursing home must exercise with regard to its residents is similar to that which must be exercised by a private hospital to its patients. A nursing home, in supervising and caring for its residents, must therefore exercise such reasonable care and attention for a resident’s safety as the resident’s mental and physical condition may require.
The general standard of nursing care in a hospital in Oklahoma has been stated as follows:
A hospital which is conducted for private gain receives patients under an implied obligation that it will exercise ordinary care and attention for their safety, and that such degree of care and attention should be in proportion to the physical and mental ailments and condition of the patient; the question whether or not such requirements have been met presents an issue of fact to be determined by the jury. Flower Hospital v. Hart. (62 P.2d 1248, 1250 (Okla. 1936).)
The standard of care owed a patient by a hospital requires the hospital to take into account the physical and mental condition of patients on an individual basis. Applying Oklahoma authority concerning hospital negligence, a plaintiff should be able to bring a claim against a nursing home either on the basis of respondeat superior or independent negligence on the part of the institution, such as failure to furnish a safe facility or failure to adequately supervise patients.
In Rodebush v. Oklahoma Nursing Homes, Ltd., the Oklahoma Supreme Court upheld liability against a nursing home for an assault upon a resident by a staff member based upon both respondeat superior and independent negligence. The Court found that the nursing home was liable for the acts of a nurse’s aide who slapped a combative Alzheimer’s patient. In addition, the Court approved liability based on negligent hiring and supervision where the offending nurse’s aide had a lengthy and violent criminal record yet was hired without any background check.
Lack of witnesses and direct evidence of negligence may be problematic in many cases of alleged nursing home negligence. However, in Morningside Hospital & Training School for Nurses v. Pennington, the Oklahoma Supreme Court of Appeals held that the plaintiff stated a prima facie case of negligence by showing that the plaintiff’s decedent had been admitted to the hospital in an irrational condition; that when he was first placed in the hospital, side rails were removed and his left leg was chained to the bed; that approximately three weeks after his admittance, he was discovered lying on his head on the concrete floor in a bloody condition; that after being discovered in such condition, he was not able to talk to his mother and did not talk again; that on the third day after his fall, he died; that at the undertaker’s office he was examined and his skull was found to be severely fractured; and that this fracture was of such a serious nature as to cause death. The Court held that although no one testified directly that the alleged fall from the bed caused the skull injuries, the evidence was sufficient to make a prima facie case of negligence against the hospital on behalf of the plaintiff.
Res Ipsa Loquitur
There are times when an injury occurs and the nursing home is unable or unwilling to explain how it occurred. One example is the bedfast resident who turns up with a fractured leg, yet the resident’s medical records do not report any accident or event that would explain the fracture. Under those circumstances, the resident can shift the burden of proof to the nursing home to explain how the injury occurred and why the nursing home is not at fault.
Res ipsa loquitur is an evidentiary rule and is generally applied to an injury that does not occur in the usual course of everyday conduct unless a person who controls the instrumentality likely to produce injury fails to exercise due care to prevent its occurrence. With the aid of res ipsa loquitur, negligence may be inferred from the harm without the aid of circumstances pointing to the responsible human cause. It is well settled that res ipsa loquitur is applicable to nursing home negligence actions.
The case of Franklin v. Collins Chappel Connectional Hospital is a good example of the importance of using the rule of res ipsa loquitur. In that case, the plaintiff was admitted to the defendant’s nursing home. He was support to be secured to chairs by restraints when left alone. The Court noted that he was “in the exclusive care, custody, and control of the defendant.” The plaintiff was given a bath by an employee of the defendant and an hour or two later, blisters were observed on his hand, side, leg and foot. The Court concluded that this type of injury does not ordinarily occur absent negligence on the part of the person (the defendant) who had the instrumentality (the bath) in its exclusive care and control. The Tennessee Court noted that the doctrine of res ipsa loquitur “merely permits the jury to choose the inference of defendant’s negligence in preference to other permissible or reasonable inferences.”
Recovery of Damages
Under Oklahoma law, an injured resident can recover compensatory damages for physical pain and suffering, past and future; mental pain and suffering, past and future; physical impairment; disfigurement; and the reasonable expenses of necessary medical care, treatment and services, past and future.
If the resident died as a result of the alleged negligence, the claim sounds in wrongful death and the compensatory damages are controlled by statute. Those damages typically include grief, loss of companionship, guidance or training of the surviving spouse and children; pain and suffering of the decedent before death, and last illness and funeral expenses.
Punitive damages are recoverable in a lawsuit alleging conduct that was willful or reckless disregard of the rights of a resident by a nursing home under the Nursing Home Care Act, as well as under the more general punitive damages statute. Other jurisdictions have approved the award of punitive damages against nursing homes for outrageous or repeated violations of the acceptable standard.
