CALIFORNIA NURSING HOME NEGLECT
Elder Abuse & Neglect in CA
Our attorneys and qualified nursing experts deal with personal injury actions arising from elder abuse (statutory definition) or nursing home neglect. We offer representation from an expert California nursing home neglect lawyer who specializes in nursing home claims. Medical practitioners and those who care for older people in residential centers often provide a high standard of excellence however there are occasions when critical errors and neglect occur and on those occasions you may need the help of an elder abuse attorney to protect your loved ones. Whilst an award of damages by a court of law will never fully compensate for any neglect suffered by an elderly person it does go some way to mitigating the financial problems and it can make life easier and more comfortable in the future.
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Free Consultation
Our elder abuse attorneys deal with claims on a contingency basis which means they don’t get paid unless they succeed. If you would like to talk to a specialist California nursing home neglect lawyer just send an email or complete the contact form and a CA attorney who is a member of the America Association of Justice will telephone you at the first possible opportunity. Initial advice from our elder abuse attorneys is free and you are under no obligation to use our services if you chose not to do so.
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Punative Damages
In the event of a succesful legal claim for nursing home negligence, California law may provide additional damages outlined below :-
California Welfare & Institutions Code §
15657. Attorney's fees and costs; defendant liable for physical abuse or
neglect; limits on damages; punitive damages
Where it is proven by clear
and convincing evidence that a defendant is liable for physical abuse as
defined in Section 15610.63
or neglect as defined in Section 15610.57, and
that the defendant has been guilty of recklessness, oppression, fraud, or malice
in the commission of this abuse, the following shall apply, in addition to all
other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable
attorney's fees and costs. The term "costs" includes, but is not
limited to, reasonable fees for the services of a conservator, if any, devoted
to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the
Code of Civil Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be recovered
pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in
subdivision (b) of Section 3294 of the Civil Code regarding the imposition of
punitive damages on an employer based upon the acts of an employee shall be
satisfied before any damages or attorney's fees permitted under this section
may be imposed against an employer.
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Medicaid Protocols
Residential care has seen substantial increases in demand, the majority of which is paid for by Medicaid. Nursing homes that rely on Medicaid funds must conform to the Health Care Financing Administration regulations which set guidelines for the evaluation, care and treatment of residents, aimed at maximizing the quality of each resident's daily life and minimizing abuse and neglect. The level of care required for Medicare billing is outlined in the Minimum Data Set (MDS) and in the Resident Assessment Protocol (RAP). These protocols effectively define how many nursing hours are required per day to match the declared level of care. In the event of a resident suffering personal injury, a California nursing home neglect lawyer can refer to the records of nursing care. If the record of actual care fails to match up with the minimum Medicare requirements then there is a strong case for claiming that the care provided was inadequate which may constitute evidence that will support a successful claim for negligence against the nursing home.
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Adequate Qualified Staff
In the event of an elderly person suffering neglect or abuse, one of the items high on the list for investigation by a California nursing home neglect lawyer relates to the numbers of properly qualified staff available to ensure that residents receive adequate care and attention. Reports submitted to Congress allege that more than one million Americans live in nursing homes where there are not enough nurses and nursing assistants to give good care and 40% of nursing home residents are malnourished or dehydrated because no one helps them eat and drink regularly. Every CA nursing home is subject to inspection by the Health Department which files deficiency reports to provide a public record of citations for health code violations.
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Contractual Obligations
If a resident suffers serious injury a California nursing home neglect lawyer will initially consider the establishments obligations outlined in the contract and will also take into account the duties and obligations that are implied or expressed in any advertising copy that was intended to induce a contractual relationship. The normal contractual obligation of residential care includes :-
- room and board
- access to competent medical care
- adequate assistance with activities of daily living
- adequate skilled nursing services
- safe home environment
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Notes, Assessments & Care Plans
Another useful line of investigation by a California nursing home neglect lawyer following an accident relates to whether or not the administrator of the residential home had in place a care plan which should take account of the potential for medical diagnoses and contain a stated goal with documentation of any follow up. Failure to comply with their own stated policy may be important in establishing negligence.
At the time of admission a nursing assessment should be made by a qualified practitioner indicating what conditions existed at the time of admission. A fall risk assessment and a skin integrity assessment should be documented. If any of these queries are in the affirmative the record should detail a proposed action plan and follow up procedures in an attempt to minimize the risk of falling injuries or to prevent pressure sores. Failure to comply with their stated policy may assist in establishing negligence.
In addition there should be nursing progress notes in the patients record which may identify any lapse in the chronology of events.
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Common Errors, Incidents & Injuries
Errors of Commission
These are actions that deviate from accepted standards and may include :-
- improper invasive actions
- negligent traumatic transfers
- administering harmful medication or treatment
- withholding medication or treatment
- over filling stomach whilst using a tube feeding
- physical, sexual or mental abuse
Errors of Omission
This is the provision of inadequate services that results in an adverse event and includes failure to :-
.
- take a proper case history and devise an adequate care plan
- report any changes or potential changes in clinical condition
- maintain adequate and proper safety protocols
- maintain and record adequate pressure ulcer prevention
- wear appropriate clothing and wash hands between patients
- make full and adequate risk assessments
- maintain adequate nutrition and keep a record
- maintain adequate hydration and a keep record
Common Incidents
These are the events most likely to cause serious injury which occur in residential care :-
- falls and/or wandering
- physical and/or sexual and/or mental abuse
- depression and/or anxiety
- skin breakdown, pressure sores and infection
- malnutrition and/or dehydration
- stomach over filling and aspiration
- blood clots particularly in the legs
Common Injuries
There are injuries that particularly affect the elderly and include :-
- head trauma with brain hemorrhage
- bone fractures
- pressure ulcers with infection and necrosis
- pneumonia and pleurisy
- pulmonary embolism
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Pressure Sores & Skin Integrity Documentation
One of the most common reasons for a California nursing home neglect lawyer to take legal action relates to pressure sores also known as bed sores or pressure ulcers which are completely treatable if found early, without medical attention however they can become life-threatening. It is important for residential care homes to be alert to the possibility of pressure sores and to that end they should properly record and treat any occurrence. A method of predicting pressure sores is known as the Braden scale which takes 6 items into account. In the event of the occurrence of a bed sore the residential facility should ensure that a Braden form for pressure ulcers is properly filled out, that the bed sore is consistent with the documented clinical condition, that there is documentation of any wounds with descriptions of size, odor, drainage, presence of necrosis etc and that there is a position record that shows the length of time spent in each position.
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Fall Risk Assessment & Bone Fractures
Elderly people often suffer from underlying osteoporosis that weakens bone which combined with decreased mobility and slower reflexes may lead to falls that result in fractures or other serious injuries. The aim of ongoing risk assessment is to identify factors that can contribute to falls and fracture risk such as osteoporosis, multiple medications, balance and gait problems, loss of vision and a history of falls. A California nursing home neglect lawyer faced with a patient suffering from fractures incurred as a result of a fall will initially enquire whether or not the documented risk assessment score is consistent with the documented clinical condition in order to establish whether or not there has been negligence in underestimating risk and will also obtain full information on what the nurses could and should have done to prevent the fall.
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Physicians Records & Medication Administration
Doctors are usually involved in the treatment of frail or sick elderly patients and their record may be an invaluable source of information to a California nursing home neglect lawyer who will initially makes the following enquiries:-
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Vulnerable Adults
A CA elder abuse attorney may take legal action for intentional or negligent acts that cause harm to a vulnerable adult including physical, sexual, financial, emotional or psychological harm. Vulnerable adults include those who need care services by reason of mental or other disability, age or illness and may be unable to properly take care of themselves and who are unable to protect themselves against harm. Examples of behavior that is legally actionable include : -
- Physical Abuse (statutory definition) - the use of force resulting in bodily injury or physical pain which also includes the inappropriate use of drugs, physical restraints and force-feeding. This category also includes sexual abuse defined as non-consensual sexual contact of any description with an elderly person.
- Mental Suffering (statutory definition) - infliction of anguish, pain or distress which includes verbal assaults, insults, threats, intimidation, humiliation, enforced isolation and harassment.
- Neglect (statutory definition) - failure to fulfill care responsibilities or obligations or duties including failure to provide food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety and other essentials.
- Abandonment (statutory definition) - desertion of a vulnerable individual by a person who has assumed responsibility for providing care.
- Financial Abuse (statutory definition) - illegal or improper use of funds, property or assets.
- Isolation (statutory definition) - includes refusal of visitors or phone calls, false imprisonment and physical restraint
- Abduction (statutory definition) - removal from the state and restraint from returning for an adult without mental capacity to consent.
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