Call now for a free Evaluation.Click Here For Help

FAQs

ScalesBook.FAQ.Page

Nursing Home Neglect & Abuse FAQ

What is nursing home neglect?

Nursing homes and assisted living facilities, along with other residential and rehabilitation facilities, are entrusted with the care of people who need help caring for themselves. The employees of these facilities should follow established standards of care, which include following doctors' orders and providing the care that is generally expected from similar providers, including guidelines established by the state and federal governments. It is considered neglect if an injury or other health problem occurs due to lack of following these standards.

What is nursing home abuse?

Abuse of the elderly can take many forms, but it is particularly egregious when it happens in a nursing home at the hands of people who are supposed to be taking care of you.  Federal law defines abuse in a nursing home as

Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, or physical abuse, including corporal punishment, involuntary seclusion, or any other actions within this definition.

Examples of physical abuse include

  • Hitting
  • Slapping
  • Pinching
  • Kicking.
  • Controlling behavior through corporal punishment.
  • Sexual abuse

However, abuse is not always physical, it also can be:

  • Involuntary seclusion
  • Mental/psychological abuse
  • Verbal abuse

If you are aware any abuse of a nursing home resident, you should report it immediately to the State agency responsible for investigation in nursing homes.

In Texas, that number is 1-800-458-9858.

What can a Nursing Home Attorney do for me?

An experienced nursing home abuse attorney, like those at Rosen & Spears, can help gather and review the evidence necessary to determine whether there is a basis to pursue a legal claim and/or report to regulatory bodies. Attorneys experienced in these areas can also help victims of neglect or abuse and their loved ones navigate this complex area of the law toward successful resolution of a claim.

Do you offer free consultation?

Yes, at Rosen & Spears, we do offer a free review to determine if our law firm is able to assist you. If we are not able to help, there is no charge to you.

What determines whether there is going to be a lawsuit or not?

Many elements are considered in determining whether a situation of neglect or abuse can proceed to a legal claim. Pursuing a lawsuit can be very costly, with most states requiring expert testimony in support of the claim. Many states, such as Texas, also have tort reform laws which limit the maximum damages recoverable in many situations. At Rosen & Spears, we view each situation individually to determine the best course of action that will create the best possible outcome.

Who can request copies of a resident’s nursing home records?

The records of a resident who is still living may be requested by the resident or the person given authority to act for the resident under a medical power of attorney.  If the resident is deceased or incompetent, the request can be made by the authorized representative of the person’s estate.  In Texas,  if the person is deceased and no estate has been opened, the request may be made by a parent, spouse or adult child of the deceased when neglect is suspected.

Do I have to pay for a copy of my medical records?

Most of the time, yes.  Some doctors and hospitals will provide you with free copies, but most of the time, you will be charged.  Federal law says the cost should be “reasonable” but does not say exactly what that cost should be.

Regarding records from doctors, in Texas, the fees for physician records are set by the Texas Board of Medical Examiners.

On paper , the fee can be no more than $25 for the first twenty pages, and $.50 per page for every page after the first twenty.

For electronic format, the fee should be no more than $25 for the 500 pages or less, and $50 for more than 500 pages.

For hospitals:

In Texas, the charges are as follows for written records (plus cost of shipping):

  • 1 to 10 pages – $45.02
  • 11 to 60 pages – $1.51 per page
  • 61 to 400 pages – $0.75 per page
  • More than 400 pages – $0.40 per page

If the records are on electronic format, a fee of $81.57, plus cost of shipping.

The charges may be slightly different if they records are on microfiche.

How long do I have to file a lawsuit against a nursing home for abuse or neglect?

Nursing home neglect and abuse claims generally fall under the category of personal injury claims with many states having special laws specifically for medical negligence cases. Each state has its own statute of limitation for filing a personal injury and medical malpractice claims. Generally, this will be one or two years from the date of the injury, but it is important to consult an experienced attorney who can help you determine how the statutes of limitation apply to your case. However, it is important to act quickly if you think you may have a medical malpractice lawsuit. There is a lot of work to be done before a lawsuit is filed and valuable evidence may be lost by waiting until the deadline.

What is a bed sore?

Bed sores, also called pressure sores or decubitus ulcers, are skin lesions most commonly caused by lack of blood supply to the skin. Factors such as friction, moisture and underlying health conditions can cause the wounds to develop more quickly. They often occur at areas of unrelieved pressure or over bony prominences, such as the sacrum (the base of the spine), buttocks, and heels. They can be rated from Stage 1 (milder irritation) to Stage 4 (skin is highly ulcerated and bone may be visible).

How does a bed sore develop?

Bed sores usually develop when the blood supply to the skin is cut off after being left in one position too long as may occur when a person is not able to move freely on his own. The constant pressure along with exposure to soiled linen or diapers can further complicate a pressure ulcer by providing an environment in which skin erodes and germs flourish.

Can bed sores cause death?

Yes. Unattended bed sores can progress to the point of severe infection, sepsis and even gangrene, and can result in death.

Does a Nursing Home Abuse Attorney handle assisted living facility abuse and neglect cases?

Most of the time, yes, they do. However, assisted living facilities (ALF’s) have different regulations than nursing homes, and the standard of care they are asked to observe is often less stringent than that of a nursing home. Many times the care an ALF is supposed to provide is determined by the contract signed at the time of admission. These different standards may affect whether an attorney is able to assist with a situation.

Should I report abuse or neglect?

At Rosen & Spears, we advocate the reporting of any abuse and neglect that puts someone at risk for harm. However, it is important to consider the timing of a report if retaliation is a concern. Moving your loved one before you report may be the best thing to do. You can also ask that your report be treated as “anonymous.” Our experience is that the reviewing agency will try to examine the situation in such a way that the identity of the reporter is maintained in confidence.

Should I report suspected abuse/neglect of my loved one at a nursing home?

A report should be made to the state survey agency which is responsible for insuring the nursing home’s compliance with required regulations.  Contact can also be made with the office of the ombudsman to see what assistance they can provide.  They act as a liaison between the nursing home and the resident to try to resolve problems.

Is it important to document what happens?

It is important to make notes of events, dates and times, names of staff, etc. when an event has occurred.  It is much easier to document as you go along rather than try to remember later.  It is also important to take photographs.

When should I request copies of my loved one’s records?

As a rule, it is ill advised to request records while your loved one is still living in the nursing home because of the risk of retaliation.  Once your loved one is no longer a resident of the nursing home about which you are complaining, then a request for that nursing home’s complete chart should be made.  Requests made to hospitals and other healthcare providers may be made at any time.

Where do I report abuse or neglect?

Every state has an agency where people can report known or potential harm to disabled and senior citizens. To find the resouce in your state, you can go to:
http://www.ncea.aoa.gov/Stop_Abuse/Get_Help/State/index.aspx

What can I do if I suspect Nursing Home abuse or neglect?

If your loved on is in danger, it is important to take action as soon as possible. If you are going to make a complaint, we always recommend being aware that if your loved one is still a resident, he or she can be subject to retaliation. You may need to move him or her to a new facility to get the care your loved one deserves. If your concern is more minor, you may try to address the concern with the doctor, director of nursing, or the administrator. We suggest you put your concerns in writing, in addition to any verbal conversations that take place. It is helpful to photograph when you can as this helps you show others what you are concerned about. You can also keep a detailed journal of conversations and meetings with staff and administrators to help you track their responses.

What are consequences to my loved one if I report abuse or neglect?

Legally, there should be no consequence. However, practically retaliation is a common concern, and one that needs to be addressed. People should voice their concerns in most situations. If you suspect retaliation, report it immediately to the director of nursing, administrator and state agency for your nursing home.

If my loved one has passed away, can I file a lawsuit on his or her behalf?

In many situations, yes. Unfortunately, many nursing home abuse and neglect lawsuits are filed in response to an injury that has resulted in death of a loved one. States vary on which relatives are able to file, so it is important to contact a nursing home abuse attorney to work through these challenging questions.

Medical Malpractice FAQ

Do I have to pay for a copy of my medical records?

Most of the time, yes.  Some doctors and hospitals will provide you with free copies, but most of the time, you will be charged.  Federal law says the cost should be “reasonable” but does not say exactly what that cost should be.

Regarding records from doctors, in Texas, the fees for physician records are set by the Texas Board of Medical Examiners.

On paper , the fee can be no more than $25 for the first twenty pages, and $.50 per page for every page after the first twenty.

For electronic format, the fee should be no more than $25 for the 500 pages or less, and $50 for more than 500 pages.

For hospitals:

In Texas, the charges are as follows for written records (plus cost of shipping):

  • 1 to 10 pages – $45.02
  • 11 to 60 pages – $1.51 per page
  • 61 to 400 pages – $0.75 per page
  • More than 400 pages – $0.40 per page

If the records are on electronic format, a fee of $81.57, plus cost of shipping.

The charges may be slightly different if they records are on microfiche.

What is Medical Malpractice?

From a practical standpoint, medical malpractice occurs whenever a doctor, hospital, nurse or other healthcare professional commits a medical error. However, to have a medical malpractice lawsuit, the law requires that the medical error also results in harm. For example, if a doctor did not correctly diagnose you, there might be a medical error, but if you got better on your own, that error did not result in harm.

Additionally, because of the rising costs to pursue medical negligence cases and tort reform in many states, the harm will need to be a harm substantial enough that the monetary damages that a jury would award in a case will outweigh the costs of the lawsuit. Some examples of substantial injuries caused by medical neglect include:

  • Death
  • Disability
  • Disfigurement
  • Lengthy hospitalization
  • Substantial medical bills
  • Lost time from work
  • Serious pain and suffering

What does “standard of care” mean?

“Standard of care” is a legal term and refers to what the healthcare professional should have done. Usually, state law states it as “what a reasonable medical provider would have done under the same or similar circumstances.”

How do I know if I have a medical malpractice case?

Rosen and Spears LogoIt is best to have your situation reviewed by an experienced medical malpractice attorney, who will review pertinent records and other evidence. This is a complex area of the law, and an experienced law firm will also be familiar with medical malpractice laws in your jurisdiction and take into account unique regulations for the medical providers involved and the laws of the state where the injury occurred

In Texas, what is the statute of limitations for minors to bring medical malpractice claims?

logorstipsThe legislature has passed a law that says everyone, including minors, must bring a medical negligence claim within two years of the date of injury.   Courts have held this statute of limitations  is unconstitutional if it cuts off a minor’s right to bring suit before the expiration of two years following their 18th birthday.  Recently, the Texas Supreme Court has granted review of a case to determine whether another Texas  law that can limits minors’ ability to bring claims for acts that occurred before their 18th birthday is constitutional.

Regardless, of the application of these laws, it is always better to act quickly when possible.  The longer you wait, the more likely it is that evidence can be lost or destroyed.  Have your claim evaluated as quickly as possible by a qualified attorney.

Can I get my original medical record?

No.  The law only provides for you to have a copy.  Medical providers are required to maintain your original medical record in their files

How do I get a copy of my medical records?

Federal law guarantees you the right to get a copy of your medical records.  Doctors,  hospitals, and nursing homes will tell you that your records are confidential but you can authorize the healthcare provider to give you a copy for yourself or to send to someone you approve (inlcuding another doctor).

First, you will need to sign a written consent form that contains at least the following:

  1. What information you want copied;
  2. Why you want it; and.
  3. The person you want to get the copy.

Many medical providers have their own form they like to use.  If not, the privacy policy you signed before getting the medical care should tell you how to get them.  Most of the time you just need to ask.

Once you have signed the form and given it to the medical provider, Federal law requires a health care provider to provide the records to you within 30 days, or give you a reason why they cannot.  Certain states have laws that shorten this time.  For example, in Texas a doctor has 15 days to provide you a copy of your records.  In California, you can see your records in 5 days, and get a copy in 15 days.  If you have a question about the laws in your state, you can go to http://hpi.georgetown.edu/privacy/records.html and click on your state to see the applicable laws.

It is often a good idea to make your request in writing and keep a copy for yourself.  That way you know when you asked for the records and when you should have your copy.  If you anticipate any problem, you can always send the request certified mail, return receipt requested.  That way you can prove what date you sent the request and what date it was received.

Do I have to pay for a copy of my medical records?

Most of the time, yes.  Some doctors and hospitals will provide you with free copies, but most of the time, you will be charged.  Federal law says the cost should be “reasonable” but does not say exactly what that cost should be.  In Texas, the fees for physician records are set by the Texas Board of Medical Examiners and can be no more than $25 for the first twenty pages, and $.50 per page for every page after the first twenty.  For hospitals, the charges are as follows for written records:

  • 1 to 10 pages – $44.35
  • 11 to 60 pages – $1.49 per page
  • 61 to 400 pages – $0.74 per page
  • More than 400 pages – $0.39 per page

The charges may be slightly different if they records are on microfiche.

Can I be denied a copy of my medical records if I owe the provider money?

logorstipsNo, under HIPAA, a medical provider cannot deny you a copy of your medical records because you have not paid for the services you have received.

What if I disagree with information contained in my medical records?

logorstipsIf you think the information in your medical record is not correct, you can request that the medical provider who created the record, correct or amend the information that is wrong.  If they disagree with you, you have the right to submit  a statement that you disagree with the information and the medical provider must add this statement to your records.

Can a misdiagnosis be medical malpractice?

It is possible, but it must be proved that the failure of appropriate diagnosis was below the standard of care and caused significant harm that would not otherwise have occurred. A medical malpractice attorney can help review the documentation and evidence to help you determine if you have a case.

How can I find out if a doctor has been previously sued for malpractice?

You can check with the Board of Medical Examiners in your state. Most states will publish if a doctor has been reprimanded in the past. A way to determine if a doctor has been sued would be to check in the Clerk’s Office in the County or District where the doctor lives or practices. Sometimes, lawsuits may have been filed in the Federal Court.

What is the statute of limitations for a medical malpractice lawsuit?

Medical malpractice claims generally fall under the category of personal injury claims with many states even having special laws specifically for medical negligence cases. Each state has its own statute of limitation for filing personal injury and medical malpractice claims. Generally, this will be one or two years from the date of the injury, but it is important to consult an experienced attorney who can help you determine how the statutes of limitations apply to your case. However, it is important to act quickly if you think you may have a medical malpractice lawsuit. There is a lot of work to be done before a lawsuit is filed and valuable evidence may be lost by waiting until the deadline.

Do I need an expert to establish that the treatment I received constituted medical malpractice?

Yes, most states require the testimony of an expert with credentials similar to those of the medical providers being sued. For example, a nurse should testify about what a nurse did wrong, and a doctor should testify about what a doctor did wrong. If that healthcare provider is not a doctor, usually a doctor will need to be retained to testify that the negligence caused in the injury.

Can a failure to read test results properly lead to a medical malpractice claim?

Possibly, if the failure to read test results properly was below the standard of care and that failure resulted in harm that would not have otherwise occurred. Similar to the issue of misdiagnosis, a medical malpractice attorney can help review the documentation and evidence to help you determine if you have a case.

What types of evidence do I need in medical malpractice cases?

Rosen and Spears LogoYou will generally need medical records pertinent to the injury or issues of the case. Many providers charge per page for providing copies of the records, and some are able to provide records on electronic disc for a flat fee. The other evidence most states require is the testimony of an expert and some states require a written report containing the expert’s opinions.

Who can be sued for medical malpractice?

In Texas, a healthcare provider may be sued for medical malpractice.  A healthcare provider can be a business such as a hospital, nursing home or emergency medical services provider.  A healthcare provider can also be an individual such as a doctor, nurse, dentist, podiatrist, pharmacist, or optometist.  If the person who committed the malpractice is not considered a healthcare provider, the claim may be one of general negligence.  

Will I have to go to court?

In many instances where the documented evidence is strong, the defendant(s) will offer a settlement rather than proceed into court. If an agreement can be reached during these discussions, there is no need to appear in court.