Nursing Home AbuseThe number of Kansas citizens that reside in nursing homes has steadily increased over the past two decades. As healthcare sciences improve, individuals are able to live longer lives. But in an individual’s twilight years, additional care is needed, making nursing homes the ideal living arrangement for many. However, these facilities can place residents in dangerous situations when caregivers fail to properly care for individuals. Below is a brief overview of liability that may arise from injuries occurring from abuse in nursing homes.
Physical AbuseWhen most people hear about abuse, they think of physical abuse. The law certainly creates liability for this type of physical abuse in the form of claims for battery. A battery is a harmful or offensive contact by the defendant directed at the plaintiff. A battery may be in the form of striking or less violent touching. For example, a caregiver that baths a resident with extremely hot water would commit a battery. Likewise, a caregiver that sexually touches a resident while she sleeps is also liable for committing a battery. When a plaintiff is the victim of a battery, he or she can recover for personal injuries suffered and emotional distress caused by the incident.
Threats of physical abuse, even if not carried out, are also actionable. Kansas recognizes such actions as assaults. An assault is the threat of force, placing the victim in fear of immediate physical contact. In a nursing home setting, this can include a threat to strike a resident unless they comply with an order. Assaults commonly go hand-in-hand with batteries, but are separate wrongs that can be recovered for separately. For example, if a caregiver threatens to hit a resident unless they keep quiet and then does strike the resident for speaking, both an assault and a battery have occurred. The victim may recover for the threat and the contact in such a situation.
Emotional AbuseIn addition to physical abuses, residents of nursing homes may be victim to emotional or mental abuse. Kansas recognizes a claim for intentional infliction of emotional distress (also known as outrage) and negligent infliction of emotional distress. Intentional infliction requires intentional actions by the defendant that are extreme and outrageous. The plaintiff only needs to show mental or emotional distress to recover. The difficult hurdle in this case, as recognized in Robert v. Saylor, is showing that the defendant acted in an extreme and outrageous manner; it is not enough that the defendant was rude, mean, or disrespectful—the law requires shocking behavior reaching the level of abuse.
Negligent infliction of emotional distress is slightly different. For these claims, the defendant’s actions do not need to be as outrageous. The tradeoff is that the victim must suffer distress so sever it manifests as a physical ailment. Common examples of physical ailments include vomiting, night terrors, and fainting. Without such physical ailments, the victim of negligent infliction of emotional distress cannot recover for his or her injuries.
In a nursing home setting, both types of these claims may occur. Emotional abuse may be outrageous in the form of consistent verbal berating or humiliation. The key is the level of indecency the defendant’s actions show. Negligent infliction of emotional distress is less severe, and may include continuously failing to administer medication in a timely fashion. The stress of worrying about negative side effects of missing medications must result in some form of physical symptom, such as vomiting or ulcers.
Indirect AbuseAside from direct physical and emotional abuse, caregivers may indirectly abuse residents through substandard care or general neglect. Caregivers in a nursing home are responsible for the well-being of residents. When a caregiver chooses to ignore residents and their needs, he breaches a legal duty owed to the residents. For example, a caregiver may fail to give a resident medications as prescribed. If this failure to receive proper medications results in injury to the plaintiff, they may recover for the indirect abuses.
Injuries may also result from neglecting residents. When a caregiver chooses to ignore a request for assistance or a complaint about a condition or issue, and the resident suffers an injury as a result, the resident may recover for those injuries as well. This is in contrast to normal negligence actions, in which defendant generally have no responsibility to assist others. The special relationship between the caregivers of a nursing home and the residents places an obligation to care and act for the residents. Not only must the caregivers act, but they must meet the standard of care for caregivers.
It is important to note that for this direct abuse, the actions of the caregiver must result in injury. Unlike emotional abuse, the wrongs of caregivers in these negligence actions must result in physical injury; emotional and mental harm are not enough. However, when both physical and mental harm occur, the victim can recover for both. Thus, caregivers may act below the expected standard of care but escape liability if the resident does not suffer physical injury as a result.
Nursing homes are trusted to care for individuals that cannot fully care for themselves. This special relationship makes nursing home residents particularly vulnerable to abuse by those entrusted to care for them. When abuse has occurred, it is important to contact experienced legal counsel right away. Though the state may be able to address abuse through its own mechanisms, those state avenues cannot provide the victims adequate redress for medical bills and emotional harm. An experienced lawyer can achieve this relief for those victims and ensure that proper compensation for injuries is recovered.