Nursing Home Abuse
In these modern times, as parents and grandparents grow older, busy working family members are unable to keep senior members of their family at home. When they are unable to take care of the older members of the family, California families are increasingly turning to licensed nursing homes, residential care facilities, and assisted living facilities to ensure that loved ones get the proper attention, care, service, love, and compassion they deserve. But unfortunately, with increase in frequency we see nursing homes and elder care facilities failing to live up to the promises they make to care for our loved ones. Too often we see and hear reports of assisted living facility residents are subjected to physical abuse, emotional harassment, and neglect.
Elder abuse and senior mistreatment in our community is a very real problem that afflicts nursing homes and residential care facilities throughout California every day. If you suspect that you or a loved one has been a victim of nursing home abuse, your family member may be entitled to compensation.
Walkup, Melodia, Kelly & Schoenberger have a legal team dedicated to advocating for senior citizens and victims of nursing home abuse. We have successfully made recoveries on behalf of senior citizens against nursing homes and residential care facilities. Contact us today for a free consultation – we can give you the justice and closure you deserve.
Statistics About Nursing Home Abuse
There is an ever increasing number of people aged 65 and older living in nursing homes and assisted living facilities. Here are some statistics regarding these people and nursing home abuse.
- In California, 110,000 live in 1,300 licensed nursing homes, 150,000 live in 7,500 licensed residential care facilities, and an estimated 150,000 or more live in unlicensed, unregulated assisted living facilities.
- In 2009, 13% of all complaints to the California Office of the State Long Term Care Ombudsman involved abuse or gross neglect. For comparison, the national average is 5%.
- A comprehensive 2015 review found that approximately 10% of all people in the U.S. 65 and older have been a victim of elder abuse.
- A 2003 study estimates that only 1 in 14 cases of elder abuse are reported to authorities.
- A government study by the House Government Reform Committee found that 30 percent of nursing homes in the United States were cited for almost 9,000 instances of abuse from 1999-2001.
- Elder financial abuse costs older Americans roughly $36.5 billion per year.
Defining Elder Abuse and Nursing Home Abuse
In California, the legislature has enacted statutes which define quote neglect” as well as what an injured person must prove in order to recover for elder neglect. The governing statute is found in Welfare And Institutions Code Section 15610.57.
Welfare And Institutions Code Section 15610.57 defines “neglect” as meaning the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
The statute goes on to provide that “neglect” includes all of the following:
1.) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
2.) Failutre to provide medical care for physical and mental health.
3.) Failure to protect the elder from health and safety hazards; and,
4.) Failureto prevent malnutrition or dehydration.
And lastly, the statute provides that abuse includes the failure to satisfy the needs of an elder or dependent adult who is suffering from cognitive impairment, mental limitations, substance abuse or chronically poor health.
The judicial definition of elder abuse decreed by the Center for Elders and the Courts is similar but not exactly equivalent. According to that body,, elder abuse includes:
- Physical, emotional, and sexual abuse
- Financial exploitation
- Neglect and abandonment
Reasons for Nursing Home Abuse
Whether it’s physical abuse, neglect, or financial exploitation, there are common and reoccurring reasons as to why nursing home abuse occurs.
- Understaffing. A 2002 federal study revealed that more than 90 percent of the nation’s nursing homes are understaffed. Understaffing is common in California, and citations to the Department of Health can be research to show whether a particular failure is chronic and whether the institution has previously been cited. By 2025, California’s elderly population will have doubled to 6.5 million – a growth rate that will undoubtedly increase the problems with over staffing as nursing home facilities likely will not be able to keep up with.
- Incompetence. An absence of proper training and certification is common in unlicensed facilities. In licensed facilities there are also such problems as even care centers with proper credentials often hire caretakers who are not licensed or properly qualified to be taking care of those in assisted living facilities. Failure to appreciate signs and symptoms of dehydration or developing bedsores, or failure to appreciate signs of mental confusion or drug overdose are frequently found where inadequately trained caretakers are on the job. Often, these unqualified, unlicensed nurses cause more harm than good.
- Stress and exhaustion. Where understaffing occurs, existing staff are forced to work longer hours than is safe or prudent. Where understaffing exists, those few qualified caretakers on duty may have too much on their plates resulting in care that is not thorough, and staff that is not as attentive as they need to be. Additionally, the frustration that can accumulate can result in inadvertent physical and emotional abuse toward those in nursing homes.
- Abuse from other residents. Recently, studies have shown that resident-on-resident abuse may be more prevalent than staff abuse, due to poor patient management in some assisted living facilities.
Signs of Nursing Home Abuse
Signs of nursing home abuse range from obvious scrapes and bruises to more subtle emotional affectations.
- Bruises, pressure marks, broken bones, burns
- Appearance of fear when interacting with caretakers
- Sudden withdrawal from activities
- Unusual depression
- Strained or tense relationships
- Poor hygiene
- Unusual weight loss
- Lack of basic medical needs, such as glasses, walker, hearing aid, or daily medications
- Isolated, and no apparent care is given by the caretaker
If you notice these signs in your loved one, it may be time to consult an attorney and report nursing home abuse to the proper authorities.
According to The Center on Elder Abuse, physical abuse is the most reported form of abuse in residents of long term care facilities. 29% of complaints in U.S. nursing homes and 25% of complaints in U.S. board and care facilities specifically cite physical abuse. This includes anything, from kicking, punching, hitting, and slapping to pushing, biting, burning, and even fractures.
While these may seem minor, the effects can be profound. According to the National Center for Elder Abuse, seniors who experience even modest abuse have a 300% higher risk of death.
It’s important to know that neglect is also a form of physical abuse as well. When a nursing home resident intentionally does not get the care that is required, that can be grounds for abuse. This is often found in nursing home or assisted living residents who are bedridden due to sickness or old age. Common indicators of neglect include:
- Also known as pressure ulcers or pressure sores, these are wounds caused by unrelieved pressure on the skin, occurring more commonly over bony sections of the body, such as the elbow, heel, hip, shoulder, back, and back of the head. More than 10% of nursing home residents have had bedsores.
- Lack of basic hygiene. That includes proper bathing, combing of hair, and even changing and replacing of bed pans.
- Lack of basic medical needs. This includes items considered to be essential to quality of life, such as glasses, daily medications, a hearing aid, or a walker.
- Hoarding of possessions. Because a resident does not receive enough care, he or she may have developed a need to hoard possessions and food in order to ensure they do not go hungry.
One of the rising concerns of nursing home abuse is resident-to-resident abuse, in which residents react aggressively and violently toward other residents in long-term care facilities. This includes physical, verbal, and even sexual abuse.
In California, incidences of resident-to-resident abuse are occurring due to the shifting population of nursing homes, where people who aren’t necessarily senior citizens are being admitted into long-term care facilities. Nursing homes these days aren’t meant just for elderly citizens – instead, they house three distinct populations:
- Elderly adults who require nursing home care.
- Younger residents with mental illness – but otherwise need no long-term care.
- Able-bodied residents who require drug and alcohol treatment, but no obvious need for assisted living care.
Between 1994 to 2014, the population of California nursing home residents under 65 years old grew by nearly 40 percent, while those over 65 decreased by 11 percent. Additionally, the number of nursing home residents with mental illness is rising as well. According to data gathered by Brown University, 1 in 7 residents in California nursing homes has schizophrenia and/or bipolar disorder.
Mixing these potentially belligerent individuals with frail elderly residents can be a volatile mix, an ideal environment for resident-to-resident nursing home abuse to occur.
While elders are subject to financial abuse, they can even be victims of it in a long-term care provider like a nursing home or assisted living facility. Also known as financial exploitation, this can happen in nursing homes when someone illegally or improperly uses your money or belongings for their own personal use.
Nursing homes may allow their residents to deposit personal funds with the facility to use later. Because of this arrangement, residents often do not know that their money is being stolen – and are unaware of their own rights in the matter. In reality, nursing home facilities are required to:
- Protect these personal funds. If a resident has personal funds greater than $50, they’re required to place them into an interest-bearing account.
- Maintain full accounting of a resident’s personal funds.
- Make records of these funds available to the resident via quarterly statements.
- Not charge residents for any services that have already been covered by Medicare or Medicaid.
Additionally, residents have the right to:
- Access any and all personal records within 24 hours.
- Manage their own personal finances.
- File a complaint without a few of retaliation.
Residents should make sure to check their finances often, and be wary when caretakers do not follow your strict financial directions. If you see any irregularities in your funds, you may be a candidate for financial abuse – and may be entitled to compensation.
Who is Liable in Nursing Home Abuse?
Nursing home abuse can occur directly from a number of different parties, such as caretakers, nurses, aides, and even other residents.
However, nursing homes and other long-term care facilities usually have a strict “duty of care” to residents, due to their significant, important influence on residents’ everyday lives. These facilities are responsible for providing food, shelter, and healthcare to its residents, and as such, may be ultimately liable for anything that happens to them.
This means that nursing homes and other long-term care facilities can ultimately be held liable for:
- Negligent training of staff
- Negligent hiring of staff, including poorly qualified individuals or a failure to perform the proper background checks
- Intentional abuse by staff members
- Failure to properly discipline staff for their negligence
- Failure to provide protection and safety to residents
- Failure to stop resident-to-resident abuse
- Inability to provide basic standards of living for residents, such as food, water, and shelter
- Failure to provide proper medical care, including proper daily medication
In very few exceptions, third parties may be held liable – or at least share in the responsibility with the nursing home. For example, if any medical equipment or medication as shown to have a defect that cause harm to a resident, the manufacturer of the equipment or drug may be found to be ultimately liable. Additionally, if any food-borne illness were to occur, the third party supplying the food to the nursing home may be liable, along with those who improperly prepared the food.
Because nursing home abuse is such a complex issue, liability can be confusing, and figuring out who is ultimately responsible can be an issue. Contacting a law office like Walkup, Melodia, Kelly & Schoenberger with years of experiences in personal injury cases may be the best solution for sorting that all out.
Prosecuting Nursing Home and Elder Abuse in California
Any person (not just residents or their family members) or organization can file a complaint about a nursing home with the Licensing and Certification Division of the California Department of Public Health (DPH). DPH is the state agency that enforces nursing home laws and regulations through regular inspections and complaint investigations. File a complaint with DPH when problems are serious and/or other steps to resolve your concerns have not been effective.
You can file a complaint about abuse, neglect and any other matter protected by law. For example, you can file a complaint about violations of individual civil rights, poor care, lack of staffing, unsafe conditions, mistreatment, improper charges, transfer and discharge concerns, and a failure to readmit you after a hospital stay.
Another option is contacting the long term care ombudsman office in your county for assistance (http://www.aging.ca.gov/Programs/LTCOP/Contacts/). The ombudsman program helps residents resolve concerns about their care and rights. The ombudsman does not have any powers or direct authority over the nursing home, however, it can try to resolve the complaint with the nursing home, express concerns with outside officials and help you file a formal complaint with DPH.
DPH must notify you of the name of the assigned investigator within two (2) working days of your complaint. It is a good idea to call the assigned investigator prior to the onsite investigation to ensure the investigator is familiar with the details of your complaint and to discuss the planned investigation.
Under California law, DPH must begin an onsite investigation of your complaint within ten (10) working days of receipt. If the complaint involves a threat of imminent danger of death or serious bodily harm, DPH must investigate onsite within 24 hours of receipt of the complaint.
As of July 1, 2016, DPH is also subject to timelines for completing complaint investigations. The following timelines are being phased in over a three year period.
- Investigations of complaints filed from July 1, 2016 through June 30, 2018 involving a threat of imminent danger of death or serious bodily harm must be completed within 90 days of receipt. In extenuating circumstances, the deadline can be extended by up to 60 days upon written notification to the complainant and facility.
- Investigations of complaints filed from July 1, 2017, through June 30, 2018 that do not involve threats of imminent danger of death or serious bodily harm must be completed within 90 days of receipt. In extenuating circumstances, the deadline can be extended by up to 90 days upon written notification to the complainant and facility.
- Investigations of all types of complaints filed on or after July 1, 2018 must be completed within 60 days of receipt. In extenuating circumstances, the deadline can be extended by up to 60 days upon written notification to the complainant and facility.
For complaints subject to the new completion deadlines, DPH must issue any citations resulting from its investigative findings within 30 days of completion of the complaint investigation. Citations are state fines that DPH can impose for certain types of violations.
Some aspects of elder abuse also fall under the Department of Justice’s Bureau of Medi-Cal Fraud & Elder Abuse. (BMFEA) Send BMFEA a copy of your complaint if it involves serious neglect, abuse or Medi-Cal fraud. The BMFEA is a division of the California Attorney General’s office and it investigates and prosecutes those who abuse and neglect elders and developmentally disabled residents in Medi-Cal funded facilities such as nursing homes and hospitals. Examples of abuse include a slap, multiple pressure ulcers, financial abuse ($1000 or above), sexual abuse or verbal/mental abuse.
There are three ways to file your complaint: (1) Call it in at 800-722-0432; (2) File your complaint on-line at https://oag.ca.gov/bmfea/reporting; or (3) Mail a copy of your complaint to the California Department of Justice, Office of the Attorney General, Bureau of Medi-Cal Fraud and Elder Abuse, P.O. Box 944255, Sacramento, CA, 94244-2550. This Bureau is composed of three distinct programs, each designed to bring accountability and prosecution to those engaging in elder abuse.
- The Violent Crimes Unit. This group investigates physical abuse on elders, typically committed against residents in long-term care facilities. This includes physical abuse, sexual abuse, and other physical harmful forms of nursing home abuse.
- The Facilities Enforcement Team. This team looks at the corporate entities, such as nursing homes and other long-term care facilities, to ensure they are not promoting practice which lead to neglect and general poor quality of care.
- Operation Guardians. These individuals look at the everyday operations of nursing home facilities. They help identify any instances of abuse and neglect, potentially advocating for further investigation (and eventual prosecution) by the Bureau of Medi-Cal Fraud and Elder Abuse.
While this system is ideal in getting justice for a nursing home’s crimes, it does not address any compensation or damages for the victims of nursing home abuse. This is why it is necessary to consult an attorney immediately after discovering abuse – they can give you the guidance needed to retain the compensation you deserve.
Experienced Nursing Home Abuse Attorneys
If you or a loved one has experienced nursing home abuse in the state of California, the law offices of Walkup, Melodia, Kelly & Schoenberger can help. Our team of skilled nursing home lawyers has all the resources to not only investigate and document any instances of abuse, but also the trial experience to obtain compensation for your family.
We work with agencies such as the Bureau of Medi-Cal Fraud and Elder Abuse to not only obtain compensation for your neglected or abused loved ones, but to also ensure future abuse does not occur at these facilities.
Contact us today – we offer a free consultation, and can give you guidance in your time of greatest need.