Trends in Nursing Home Litigation
Nursing home lawsuits have become one of the fastest growing segments of health care litigation. There are nearly 17,000 nursing homes in the United States that currently care for 1.7 million residents, a figure that is expected to quadruple to 6.6 million residents by 2050.(1) Over 90% of the nursing home residents are over the age of 65, and almost half are over the age of 85; the average age is more than 80.(2) Issues of concern in care may include: adverse drug events, falls with injury, pressure ulcers, faulty medical equipment, problems with tube feeding, restraint usage, malnutrition, dehydration, residents rights violations, elopement, and abuse and neglect.
Federal definitions of elder abuse, neglect and exploitation appeared for the first time in the 1987 Amendments to the Older Americans Act. These definitions were provided in the law only as guidelines for identifying the problems and not for enforcement purposes. Currently, elder abuse is defined by state laws, and state definitions vary considerably from one jurisdiction to another in terms of what constitutes the abuse, neglect, or exploitation of the elderly. Broadly defined, elder abuse definitions may be categorized as follows: Physical abuse is defined as the use of physical force that may result in bodily injury, physical pain, or impairment. It may include, but is not limited to, such acts of violence as striking, hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning. In addition, it may also include the inappropriate use of drugs and physical restraints, force-feeding, and physical punishment.
- Sexual abuse is defined as non-consensual sexual contact of any kind with an elderly or disabled person or with any person incapable of giving consent. It includes, but is not limited to, unwanted touching and all types of sexual assault or battery such as rape, sodomy, coerced nudity, and sexually explicit photography.
- Emotional or psychological abuse is defined as the infliction of anguish, pain or distress through verbal or nonverbal acts. Emotional/ psychological abuse includes, but is not limited to, verbal assaults, insults, threats, intimidation, humiliation, and harassment. In addition, treating an older person as an infant, isolating an elderly person from his family, friends or regular activities, giving an older person the “silent treatment”, and enforced social isolation are examples of emotional/ psychological abuse.
- Neglect is defined as the refusal or failure to fulfill any part of person’s obligations or duties to an elder. Neglect may also include failure of a person who has fiduciary responsibilities to provide care for an elder (e.g., pay for necessary home care services) or the failure on the part of an in-home service provider to provide necessary care. Neglect typically means the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included in an implied or agreed-upon responsibility to an elder.
- Exploitation is defined as misusing the resources of an elderly or disabled person for personal or monetary benefit. This includes taking Social Security or SSI (Supplemental Security Income) checks, abusing a joint checking account, and taking property and other resources.(3)
Estimates of the frequency of elder abuse range from 2% to 10% based on various sampling, survey methods and case definitions.(4) In 2013, state long term care Ombudsman programs nationally investigated 135,620 overall complaints of abuse, gross neglect, and exploitation on behalf of nursing home and board and care residents. Among seven types of abuse categories, physical abuse was the most common type reported.(5)
As the incidence of elder abuse rises, more programs and techniques are being developed by facilities and federal and state organizations to protect our aging population. “Grammy Cams” are being utilized in some states (currently 7 states). This allows families or residents to install surveillance cameras in their room in the nursing care facility. Several states (e.g. California and Maine) are now utilizing Elder Death Review Teams (EDRT) to evaluate nursing home deaths that may be linked to abuse and neglect. Most states now require background checks for all paid caregivers and those with criminal backgrounds are prohibited from caring for elders in nursing homes. Nursing homes and assisted living facilities are providing more orientation and education to their staff on recognizing and reporting signs and symptoms of abuse.
(6) Long term care organizations and associations are pairing with government agencies to promote public awareness of elder abuse and reporting mechanisms. State and federal survey agencies are focusing on abuse in nursing homes and have initiated procedures for timely investigation of complaints of abuse and neglect. Even one incident of abuse is unacceptable and we, as health care providers and litigators have an obligation to protect and defend our elders.
The National Center on Elder Abuse — www.elderabusecenter.org
State Long Term Care Ombudsman Programs — www.ltcombudsman.org
National Committee for the Prevention of Elder Abuse (NCPEA) — www.preventelderabuse.org
National Association of Adult Protective Services Administrators (NAAPSA) — www.naapsa.org
US Department of Justice, Office of Victims of Crime — www.ojp.usdoj.gov
US Administration on Aging — www.aoa.gov
American Society of Adult Abuse Professionals and Survivors — www.ASAAPS.org
1 U. S. House of Representatives, Committee on Government Reform, Minority Office
2 Centers for Medicare and Medicaid Services, Department of Health and Human Services, Health Care Industry Market Update: Nursing Facilities. CMS, 2002:43.
3 National Association of Adult Protective Services Administrators; National Center on Elder Abuse; Elder Abuse Awareness Kit; April 2001, pg. 4.
4 Lachs, Mark S. and Karl Pillemar, Oct. 2004, “Elder Abuse,” The Lancet, Vol. 364: 1192-1263.
5 National Ombudsman Reporting System Data Tables, 2013 – 2014. Washington DC: US Administration on Aging.
6 Long-Term Care Services in the United States: 2013 Overview