Articles Posted in Nursing Home Abuse and Neglect

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According to a recent news report, after increasing pressure from residents, Florida Governor Ron DeSantis released a seven-page list of the names of over 300 nursing homes where patients or staff tested positive for COVID-19 (the coronavirus). These nursing homes and long-term care facilities serve a diverse patient base, and provide various types of acute, rehabilitative, and convalescent care. Despite good intentions, many of these nursing homes fail to provide their patients with an appropriate level of care. In some cases, this deficient care amounts to nursing home abuse and neglect, and victims and their families may be able to hold the facility liable for their damages.

According to recent statistics, as many as 5,000,000 individuals suffer abuse or neglect at these facilities every year, and evidence suggests that 1 in 10 of these victims are over 60 years old. Abuse and neglect manifest in many different ways, and it is not always apparent to loved ones. It may take the form of physical, emotional, or sexual abuse. Further, many patients suffer neglect when the facility fails to provide the patient with appropriate care or prevent the spread of disease or infection. Many facilities are facing a heightened level of scrutiny after facilities began to face outbreaks of COVID-19.

Understandably, many families whose loved ones receive care at these facilities began to demand the release of names of facilities with positive cases. Residents and loved ones requested the list of names so that they could make informed decisions about how to proceed with the care of their family members. Before this request, the facilities only needed to provide residents, staff, and family members when there was a positive result. However, the list did not include any context regarding what the actual outcome of the positive result was.

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Nursing home and long term care facilities throughout the United States frequently rely on arbitration clauses as part of their admission procedures. Arbitration clauses provide the contracting parties a way to resolve disputes without involving the court system. Although, there are some benefits to these clauses, most Florida nursing homes design the agreements to benefit themselves and not the abuse victim or their family.

On its face, arbitration is typically faster and less costly than litigation; however, there are many potential drawbacks associated with these agreements. Arbitration agreements are generally mandatory, and residents often have no choice but to agree if they wish to be admitted to the facility. Further, signing a mandatory agreement often results in the resident giving up their Seventh Amendment right to a jury trial. Additionally, many usual rules of evidence do not apply in these proceedings, and despite being neutral, many arbitrators work to the benefit of the nursing home. Finally, disputes regarding these agreements often result in lengthy legal proceedings, precisely what the clause was designed to avoid.

For example, in a recent opinion, a Florida appellate court reversed a lower court’s ruling and found that a nursing home could compel a plaintiff to arbitrate their lawsuit. In that case, a husband executed a voluntary arbitration agreement on behalf of his wife before her admission to the nursing home. The arbitration agreement included various clauses, including a limitation on damages and a term that if any part of the contract was found to be invalid, then only the unenforceable term would be severed from the agreement.

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Earlier this year, the Centers for Medicare & Medicaid Services (CMS) updated its consumer accessible nursing home rating tool. The new system was designed to provide consumers and their loved ones with readily available and comprehensive information regarding nursing home quality and care. As the rate of Florida nursing home abuse cases continues to rise, the Nursing Home Compare website is a necessary and crucial tool for consumers. The site provides each nursing home with a rating score between 1 and 5, and additional ratings in regards to the nursing home’s inspections, staff qualifications, and quality measures. This tool helps people understand how Florida nursing homes perform on health and fire inspections, how well they care for their residents, and whether they have any history of abuse towards patients.

This tool is especially important because nursing home abuse statistics indicate that close to 5 million older adults suffer abuse each year and that almost 25% of nursing home residents reported experiencing at least one instance of abuse. This does not account for the many older people that cannot articulate or recall details surrounding their abuse.

Nursing home abuse generally occurs when the caregiver intentionally harms a resident. This type of abuse often includes physical and sexual assaults. Whereas nursing home neglect usually occurs when the resident receives inferior or substandard care. This includes failing to address or prevent a resident’s medical concerns, to provide an adequate amount of food or hygiene products, or verbally abusing a resident. Many residents are unable to adequately report their abuse due to cognitive difficulties, speech impairments, or because they do not have anyone to whom they can report the abuse. However, family members and loved ones should be aware of certain changes that may indicate that abuse is occurring. For example, malnutrition, bedsores, and behavioral changes may point to abuse or neglect.

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