When Are Nursing Home Injury or Abuse Cases Considered Medical Malpractice?
Medical malpractice arises from negligence, not from intentional acts. As such, nursing home abuse does not fall into the category. Cases of neglect or injury, however, can be the subject of a nursing home malpractice claim.
When Is a Nursing Home Injury or Neglect Case Considered Malpractice?
Medical malpractice has four components. If each of these details is true in your case, you may have a valid malpractice claim against the nursing home.
A Health Care Provider-Patient Relationship
If your loved one is a resident of a nursing home, there is a health care provider-patient relationship. Someone who is merely visiting your loved one at the nursing home, however, might not have this required relationship.
A Duty of Care Toward Your Loved One
The health care provider-patient relationship creates the duty of care that the nursing home has toward your loved one. A nursing home’s duty of care has two parts. First, the facility must comply with all the state and federal regulations for the care and safety of the residents. Second, the home must provide medical care to the standard of a reasonably careful and prudent facility (there may be additional requirements depending on the jurisdiction).
Someone Failed to Meet the Standard for the Duty of Care
This failure is a breach of the duty of care. Failing to take action to treat a high fever is an example of a breach of the duty of care.
The Breach of Duty Caused Harm
The breach of duty must be the cause or a direct contributor to the harm your loved one suffered. If your loved one experienced severe side effects because of the untreated high fever, the breach of duty caused the harm.
What Types of Mistakes at Nursing Homes Can Be Medical Malpractice?
Nursing home residents are often medically fragile. They require frequent monitoring and care. In a poorly managed facility, it is easy for the staff to make mistakes. Some examples of nursing home errors that can be medical malpractice are:
- Lack of protocols for regularly taking and recording the vitals of residents, including temperature, pulse, and respiration;
- Lack of procedures for steps to take when a patient has vitals outside of the normal range;
- Failure to call an ambulance for a patient who is in medical distress;
- Untrained or inadequately trained staff;
- Non-compliance with state or federal regulations;
- Understaffed facilities with unacceptable staff-to-patient ratios;
- Failing to respond to the medical needs of residents;
- Giving medication late or not at all;
- Giving the wrong dose of medication, mixing up the medications of two patients, or making another medication error;
- Lack of adequate equipment for the staff;
- Failure to provide necessary medical treatment or therapy;
- Using staff like a nurse’s aide when it is appropriate to use a registered nurse or physician;
- Failure to send a patient to the hospital; and
- Lack of appropriate practices to prevent falls and other injuries.
Can I Bring a Medical Malpractice Claim Against a Doctor or Nurse at a Nursing Home?
Generally, yes, you can. Of course, whether and how you do so will be governed by the laws of your jurisdiction and the specific circumstances of your case.
What Should I Do If I Think My Loved One Was a Victim of Medical Malpractice at a Nursing Home?
First, get your loved one out of harm’s way to avoid further injury. Get them the medical care they need.
Once they are in a safe, appropriate setting, preserve the evidence of the malpractice. Take photographs, write down notes of every pertinent detail you and your loved one can remember, and record the names, dates, and times of each occurrence. Be sure to note any information about potential witnesses, as well.
Next, talk with a medical malpractice lawyer right away for advice about your claim. A lawyer can advise you of any requirements for giving written notice to the facility or government agency and can determine if you are within the statute of limitations for your state.
Do not give a written or recorded statement or sign anything without running it by your lawyer first. With the amount of money at stake in medical malpractice lawsuits, there is a lot of incentive for the at-fault parties and their liability insurance carriers to try to minimize the value of your claim and settle it quickly.
How Can I Talk to a Lawyer About My Case?
The legal team at Newsome | Melton goes to bat for victims of medical malpractice. Since we practice nationwide, we can help you wherever you are.
Jerri Woodring-Thueson was an avid mountain biker. She and her husband, Erik Thueson, would take advantage of any free time they had to hit the trails. But that all changed on her last ride in the fall of 2013, when Woodring-Thueson, then 49, suffered from a minor stroke. She was rushed to a hospital inRead More
The Centers for Medicare & Medicaid Services (CMS) defines the Electronic Health Record (EHR) system as the electronic version of patient medical history. Healthcare providers actively maintain and update this record and may also “include all of the key administrative clinical data relevant to that persons care under a particular provider, including demographics, progress notes,Read More