FAQs – Nursing Home Abuse Law
Injuries, of course, can be devastating to a family. They can also be very expensive. In neglect or nursing home abuse cases, the person or facility responsible for causing an injury should be responsible for compensating the victim and paying the bills that the victim incurred because of the negligence or other wrongful conduct.
Nursing home providers who cause injury through negligence or other wrongful conduct should be held accountable. Often times, our Colorado attorneys find that neglect, particularly in a nursing home setting, is the result of systems failures as opposed to the neglect of an individual nurse or health care provider. If nursing homes are not held accountable for these systems failures – i.e., not having enough staff on hand or not adequately trained staff, or having inadequate policies and procedures – it is less likely that change will occur, and future patients or residents may suffer later.
Finally, sometimes it is just a matter of principle. If elderly or vulnerable people are hurt in the name of saving costs, for example, sometimes people sue because to not do so seems the same as saying it doesn’t matter. We believe, and our clients tend to believe, that especially when it comes to those who are unable to protect and speak up for themselves, sometimes a lawsuit is the great equalizer.
We know that there has been much talk lately about lawsuits and the societal costs of lawsuits. We don’t think that the right of an individual, particularly older and vulnerable individuals, to access the courts is a political, religious or moral issue. Our clients come from all walks of life in and around Colorado, from all socioeconomic backgrounds and from different religions. The common denominator tends to be that they or a loved one were injured by the wrongful conduct of a health care provider, and that they believe sitting on the sidelines is not an option.
We are not medical professionals and cannot give medical advice. What we can say is that the typical cases we see in the nursing home arena include such things as dehydration (not receiving enough water}; pressure ulcers (bed sores); unexplained falls and fall injuries; unexplained bruising; medication errors; failure to follow physician orders; failure to render emergency medical care; and overmedication, also known as chemical restraints. Unfortunately, when we see cases of nursing home abuse or neglect it is often the result of a nursing home’s failure to provide enough staff or failure to provide sufficiently trained staff. This results in a situation where the nursing home resident simply is not tended to often enough.
Some signs and symptoms of staffing-related neglect our clients tell us about include finding your loved one ungroomed or unclean; finding your loved one in wet or dirty diapers or pants frequently; a rapid, unexplained decline in your loved one’s physical or mental functioning; nursing homes that smell or look unclean; nursing homes in which residents appear to be bored or seated in their wheelchairs in the hallway with nothing to do; frequent staff turnover, e.g., rarely seeing the same nurse or aide more than once; and nursing homes that do not respond to your suggestions or complaints.
We recognize that everyone ages, and with aging comes a natural decrease in physical and cognitive abilities. However, natural aging does not and cannot explain or justify bad care.
Before making an important decision like hiring a nursing home abuse lawyer, it is always best to do your research. Research can include reviewing various attorney websites – just like you are doing here – as well as interviewing the attorney yourself.
Don’t be afraid to ask your prospective attorney tough questions. After all, he or she is being interviewed for the important task of handling a complicated and serious issue for you.
Nursing home litigation requires a detailed understanding of how nursing homes operate and the laws they are required to follow. Just as there are different kinds of physicians for cardiology, radiology, internal medicine and the like, there are lawyers that have particular experience in certain areas of the law. Just as you would not go to a radiologist for brain surgery, you might similarly think twice about going to a car accident lawyer, for example, for nursing home litigation.
J Reinan has been involved in nursing home and medical malpractice litigation since 1992. He started his practice representing doctors, hospitals and nursing homes that were sued by patients. He has experience in representing large insurance companies and large nursing home chains, and knows a lot about how they do business and how they defend these types of cases. He has been on the plaintiffs’ side since 1999, and now represents people suing doctors, hospitals and nursing homes. Mr. Reinan has lectured to lawyers and nursing home professionals both locally and nationally. Mr. Reinan and Ms. Gingrass were recently asked to write a chapter on nursing home litigation for the Colorado Bar Association in its Elder Law In Colorado Series (www.cobar.org/cle). We believe this experience gives you the advantage of a firm that concentrates much of its efforts and research on nursing home litigation, with intimate knowledge of nursing home regulations, nursing home standards of care and what to expect from the process and the defense.
You may also ask your prospective attorney how many nursing home cases he or she has tried to a jury. While the majority of cases tend to settle, those that do not require an attorney who is experienced in nursing home jury trials. Our firm has extensive jury trial experience from both the plaintiff’s and, formerly, the defense perspectives.
You should also ask your prospective lawyer about his or her fee arrangement. There are a number of different types of fee arrangements, including contingent fees, hourly fees, flat fees or a combination of any of the above. The contingent fee percentage also varies from attorney to attorney. Within that, some lawyers charge additional fees for taking a case through trial and the appeal process. It is important to find out how much the contingent fee is and what it covers, and to get all of that in the form of a written fee agreement.
In the end, perhaps the most important factor to consider is how well you mesh with your prospective lawyer. If you take a case through litigation, you will be spending a considerable amount of time with the lawyer and the firm. It is important that you find someone who you trust and respect, and someone who has your best interest in mind first.
It is our belief that everyone – including those of limited means – should have access to the courts. Fortunately, Colorado law allows us to represent people on a contingent fee basis. This is a fee arrangement where we do not receive money unless your case settles or results in a paid judgment following trial.
We do not charge for an initial consultation, and are happy to discuss with you whether we believe your claim is something we may be able to help you with.
The amount of money you can recover depends on many factors. First and foremost, the type of claim you have is the primary determining factor. Serious wrongful death claims, for example, tend to result in more compensation than cases involving lesser injuries with no permanent harm. That is not to say that there is no merit in bringing a case in which there is an injury that heals. There are also certain types of mental and emotional injuries. Elder abuse, for example, may involve a situation where there is no permanent physical injury but yet a large emotional one. Where someone is young and suffers an injury that is permanent, damages can become extensive due to the costs associated with future treatment and rehabilitation.
In Colorado, there is a limit on the amount of damages for so-called “non-economic” loss. Non-economic loss includes, for example, pain and suffering, physical impairment, disfigurement and mental and emotional upset. That amount is limited to $300,000.00 in cases against medical professionals, including doctors, hospitals and nursing homes. In cases against non-medical professionals the limit is higher. These limits on damages are known as damages caps or malpractice caps.
There are certain exceptions to these damages caps. For instance, punitive damages may result in awards beyond the $300,000.00 limits. However, punitive damages are also capped under Colorado law.
Claims for civil rights violations brought against Colorado State or governmental employees are typically not capped or limited. Claims for violations of the Colorado Consumer Protection Act are also typically not capped or limited. There are other potential exceptions to these limits, which we are happy to discuss with you.
Each hospital, nursing home or other medical facility has its own specific protocol for requesting records. The first thing you should do is contact the medical records department from the facility and ask for their release form.
Under both State and Federal law, a person is entitled to inspect and copy his or her own medical records. If the person is mentally incapacitated, his or her designated legal representative is entitled to copies of the medical records. Designated legal representatives can include Powers of Attorney, health care proxies, guardians and conservators. Once a person dies, his next of kin or “heirs at law” are entitled to the records. Next of kin or heirs at law include parents and children. If there are no direct heirs at law, sometimes an estate can be opened and the personal representative of the estate is then entitled to the medical records.
Sometimes health care providers are resistant to releasing medical records of deceased patients to the next of kin or heirs at law. This is directly contrary to both State and Federal law. Simply put, if you are, for example, the child of a deceased nursing home resident or hospital patient, the law gives you the right to obtain these medical records without the need to open an estate or without the need for a court order or lawsuit. If you are having problems obtaining medical records, give us a call and we may be able to help.
Arbitration is an informal proceeding in which a claim for monetary damages is decided by a single arbitrator or an arbitration panel. The form of the arbitration is determined by an arbitration agreement that is signed by all parties. For example, some nursing homes request or even insist upon patients (or their family members) agreeing upon arbitration during the admissions process. If you signed one of these agreements, the agreement will usually state how arbitration will be held. Sometimes the agreement has an arbitration service appointed either as a single arbitrator or a three-arbitrator panel. The agreement will then describe the rules of procedure that will be followed.
Arbitration is often aggressively marketed to nursing home residents and their families as more efficient, more fair, less costly and better than litigation or a jury trial. While this may be true in theory, we do not believe it to be true in actual practice.
Although arbitration is arguably quicker than a jury trial, that can come at a huge price. Most arbitration do not allow much in the way of discovery. Discovery is the process in litigation where information is exchanged between the parties. Usually that means that the nursing home is forced to produce such things as its staffing schedules, incident reports, financial documents and internal communications. Litigation-type discovery allows us to take depositions, which are interviews of witnesses taken under oath and before a court reporter.
Arbitration normally limits our ability to take this discovery, which means that the nursing home doesn’t have disclose all of the information over which it has sole control. That leaves us with a huge disadvantage going in to the arbitration. There may be “smoking gun” documents that we will never be able to see because arbitration does not allow us the opportunity to find them.
Arbitration is also a private legal proceeding, whereas litigation and jury trials are held in open court where the public and the media can see what has happened. In fact, once a lawsuit has been filed with the court, that information becomes public. Perhaps one of the reasons nursing homes push for arbitration is because they do not want their conduct publicly scrutinized in a court of law.
Another difference between arbitration and litigation is the availability of certain types of damages. Arbitration agreements can limit the availability of punitive damages, attorneys fees and even certain types of legal claims. None of this is an advantage to a person bringing a claim.
An arbitration award or decision cannot be appealed, except in very limited circumstances. Therefore, a poor decision by a biased arbitrator, for example, usually cannot be reviewed on appeal like a jury verdict would be.
That leads us to the final problem. Unfortunately, there can be some tendency toward bias on the part of the arbitrator. As a consumer, it is likely that you might bring only one arbitration in your lifetime. On the other hand, the nursing home chain may participate in literally dozens or even hundreds of arbitrations each year. The arbitrators know this. A professional arbitrator is going to understand where his or her bread is buttered. If the arbitrator finds against the nursing home too often or for too much, the nursing home is going to stop using that arbitrator or that arbitration service.
Perhaps the most extreme example of this was with the National Arbitration Forum, “NAF.”
In 2009, the NAF was investigated by the U.S. House of Representatives and sued by multiple parties for corrupt and outrageous practices, including firing arbitrators for finding in favor of consumers and against corporations; for rewriting arbitrator decisions that favored consumers of corporations; and for blatantly interpreting procedural rules in favor of corporations and against consumers. Sadly, one of the biggest nursing home chains in Colorado continued, even lately, to designate NAF as its arbitration service.
Under Colorado law, a medical provider, including a nursing home, is prohibited from conditioning admission to a medical facility on the signing of an arbitration agreement. In other words, no matter what the nursing home tells you, it cannot refuse to admit your mother, father or loved one because you refuse to sign an arbitration agreement.
Under Colorado law, you have 90 days within which to rescind an arbitration agreement. To rescind, whoever signed the agreement must notify the facility in writing that the arbitration agreement is rescinded and thereby null and void.
If 90 days has passed, there may be other defenses to the agreement. For example, Colorado law requires very specific language to be contained in the arbitration agreement that might not exist in your agreement.
If the facility engaged in fraud, duress or told you that you had to sign the agreement as a condition to admission to the Colorado nursing home or medical facility, this may also be a basis for voiding the agreement.
If you have any questions about an agreement you signed or that has been provided to you, we strongly recommend that you contact an attorney. We would be happy to discuss these issues with you.
The first thing a nursing home lawyer needs to do, at or around the time of the initial consultation, is review the medical records. If the lawyer believes there is a basis for a claim, the medical records will need to be reviewed by experts, including doctors and nurses. If the experts determine that there is a professional basis for a claim or claims, then the attorney drafts and files the lawsuit in the form of a Complaint and Jury Demand. The Complaint is then personally served on the defendants. The defendants have 20 to 30 days to file an answer to the Complaint.
Sometimes defendants will file legal motions in response to the Complaint rather than an Answer.
After the case becomes at issue (once an Answer has been filed), a trial is set and discovery begins. When the trial is set is a major factor in how long your litigation process will take. Oftentimes courts are so busy that they won’t have a trial date available for several months. On the other hand, if you are over the age of 70, you may have a right to an expedited trial setting, which we can request.
Well over 90% of cases settle before trial. Settlement discussions usually occur between the time the case is filed and the date of trial. There are many factors that influence whether a case settles, including the facts of the case, the amount of money demanded and the strength of the witnesses.
If a case does go to trial, an appeal may take place.
Should you have any questions about the Colorado litigation process, we are happy to help.
Yes. Nursing homes are one of the most heavily regulated industries in the United States. There are both State and Federal regulations governing the operation of nursing homes. These regulations cover everything from the quality of care, to the prevention of bedsores, to infection control, to dietary services, and beyond.
Oftentimes injuries to Colorado nursing home residents can be linked to the violation of one or more State or Federal nursing home regulation.
The Colorado Department of Public Environment is charged with enforcing these State and Federal nursing home regulations. The health department conducts yearly surveys of each Colorado nursing home as well investigates individual complaints. The health department’s website is a particularly helpful tool for researching the quality of care at a given nursing home. That website contains information about each nursing home’s survey history.
In addition to the State health department, the Federal Centers for Medicare and Medicaid Services operates a “Nursing Home Compare” service in which you can go online and compare one nursing home to another in a given geographic area.
If you have questions about these regulations or how to access or use the health department’s or Nursing Home Compare websites, give us a call.
I am a Medicaid recipient. If I recover money in a claim, how does that affect my Medicaid eligibility?
It really depends on your individual circumstances. In some situations, we may be able to work with a Medicaid planning attorney to create a Medicaid disability trust for you. This allows you to continue receiving your Medicaid benefits. There are many restrictions on how the money from the disability trust can be spent and how it is distributed.
In other situations, it is possible to go off Medicaid. In the event that your money is spent down, you may again become eligible to return to Medicaid.
It may also be that money can be placed in a pooled Medicaid disability trust.
We are happy to discuss possible options and, if necessary, refer you to an attorney who specializes in Medicaid law.