How to Prove Abuse or Neglect in an Assisted Living Facility

Abuse or neglect is typically proven by documenting what occurred, showing what the facility should have done, establishing the failure of care, and connecting that failure to the resident’s injury or harm. Exact legal standards for proving abuse and neglect vary by state.

If you suspect abuse or neglect of a loved one or family member, our assisted living abuse and neglect lawyers can explain your legal rights. Contact us for a free consultation. 

What Do You Need to Prove Abuse or Neglect in an Assisted Living Facility?

In general, a plaintiff must prove that the facility failed to uphold its duty of care to the resident. Civil claims generally turn on four factors, though each state has specific statutory tests. The general factors that a plaintiff must prove include:

1. Duty of Care: The assisted living facility had a duty to provide a safe environment for residents, typically described by the state’s assisted living facility regulations. 
2. Failure to Meet Duty: Also known as breach of duty, this describes how the facility failed to uphold its duty of care to the resident, such as by failing to provide personal hygiene assistance or protect the person from harm.
3. Causation: This failure to meet the duty resulted in the specific harm, such as financial exploitation or physical harm.
4. Damages: The resident suffered economic or non-economic damages, including medical bills, rehabilitation costs, physical pain and suffering, or loss of enjoyment of life. States have different damage categories, including punitive damages in cases of gross negligence. 

What Evidence Can Prove Abuse or Neglect in an Assisted Living Facility?

Before gathering documentation, ensure the person is not in immediate danger; call 911 if you suspect that they may be at risk. Next, document evidence of abuse with detailed logs and physical documentation, including:

• Formal grievances or complaints against the facility
• Medical records and diagnostics
• Time-stamped photographs or videos of injuries or conditions
• Resident care and service plans
• Medication Administration Records (MARs), particularly if you suspect chemical restraints
• Incident and accident reports detailing the injuries caused
• Text messages, emails, or medical portal messages from the facility
• Records of other communications, like phone calls

A written log of dates, times, observations, and staff responses can also establish what the facility said and when incidents were reported. 

How Do You Prove Different Types of Assisted Living Abuse?

Physical abuse includes hitting, slapping, or pushing residents. Beyond documenting physical injuries, you may establish this through witness statements, incident reports, or surveillance footage.

Sexual abuse is any non-consensual sexual contact with residents, which may be established through forensic exams if possible, witness testimony, or mental health evaluations. In some cases, residents are sexually exploited, and there may be cell phone records, pictures, or video evidence of the inappropriate conduct. 

Emotional abuse can be difficult to prove, as it does not leave physical injuries; instead, emotional abuse causes fear or distress through verbal mistreatment. To prove emotional abuse, family members can gather reports from other residents, staff members, or visitors who may have seen the abusive behavior.

Financial exploitation involves misuse of an elderly person’s funds for personal gain. If families suspect financial exploitation, they can collect and review financial documents that may show unusual account activity. 

Neglect occurs when long-term care facilities fail to provide necessary food, shelter, medical care, and assistance with activities of daily living. This may be proven through medical exams, such as proving that the person has a urinary tract infection caused by negligent catheter use or bed sores from prolonged time in the same position. 

What Are the Signs of Suspected Abuse and Neglect in an Assisted Living Facility?

The Department of Justice identifies certain signs as indicative of potential abuse. These can include:

• Unexplained Injuries: Injuries may result from physical abuse or from falls due to neglect. Look for skin tears, bruising, broken bones, sudden hospital visits, or black eyes. 
• Medication Issues: Overmedication can be a form of chemical restraint, used for staff convenience or to punish residents. This can cause serious harm over time, including kidney issues and cognitive impairment. In other cases, residents may complain that they are not receiving pain medication.
• Dehydration: Elderly residents may not always realize they are thirsty, so staff must provide fresh water and encourage them to drink. Dry skin, urinary tract infections, dizziness, or delirium can all be signs of potential dehydration. 
• Malnutrition: While weight loss is a common sign, malnutrition can also occur from unbalanced diets. Signs can include worsening medical conditions, confusion, lethargy, fatigue, or increased frailty. 
• Poor Hygiene: Rashes, skin infections, bad breath, tartar, or UTIs suggest that staff are failing to attend to personal hygiene. Unstageable bed sores are a severe sign of neglect.
• Untreated Medical Problems: Residents may report increased pain or develop new issues, such as reduced kidney function, dizziness, and unexplained infections. 
• Unsafe Conditions: Issues like wet floors, mold growing in bathrooms, rotting food, broken lights, inadequate security measures, or poor access control all suggest unsafe premises. 

A GAO review found that more than half of the 48 states providing Medicaid assisted living services could not report the number or nature of critical incidents occurring in assisted living facilities.

How Should Family Members Document and Preserve Evidence of Abuse and Neglect in an Assisted Living Facility?

Prompt action is crucial to proving abuse or neglect in assisted living facilities. Follow these steps to ensure that the abuse or neglect is properly documented.

• Photograph Conditions: Take photos of the resident’s injuries throughout the healing process. Identify any unsafe conditions in the facility, such as broken lights or mold.
• Keep Written Timelines: Log when the incident occurred, who was notified, what actions were taken, and when the authorities were notified.
• Save Correspondence: Preserve all communications with the facility staff as evidence. Collect letters, emails, text messages, or messages through facility portals. Ensure that they are dated and timestamped. 
• Request Records: This includes care plans, medical records, intake and discharge forms, hospital transfers, lab records, X-rays and diagnostics, and medication dosages.
• Identify Witnesses: Write down the names and contact information of staff members, other residents, and visitors. An attorney can use witness statements for further investigation.
• Do Not Alter Original Evidence: Do not circle injuries in photographs, write down notes on correspondence, or highlight information in medical records. 

Who Investigates Abuse and Neglect in Assisted Living Facilities?

The state licensing and regulatory agencies that are involved in investigations depend on the state’s assisted living facility regulations. Facilities are often required by law to report suspicions of abuse or neglect. Depending on the type of harm, they may report it to law enforcement, Adult Protective Services, or the state licensing agency. 

Local law enforcement may investigate if they suspect a crime in the facility. Adult Protective Services (APS) investigates abuse or neglect of the most vulnerable members of the community, including disabled and elderly individuals who cannot advocate for themselves. State agencies usually must investigate potential violations of state regulations. 

Depending on the type of harm, other investigative agencies could include the state department of health and human services, the Attorney General’s Office, the Office of Inspector General, or the state Medicaid authority.

Every state has an Ombudsman Program to assist residents in assisted living facilities, nursing homes, and other long-term care facilities. However, ombudsmen do not formally substantiate abuse. They may refer families to other agencies or help document the harm. 

In fiscal year 2023, Long-Term Care Ombudsman programs handled 202,894 complaints, and physical abuse was among the five most frequent complaints involving board-and-care, assisted living, and similar residential communities.

What Evidence Can an Assisted Living Abuse Lawyer Obtain?

Through litigation, attorneys can request evidence that may not be available to the family. This can include:

• Staffing schedules and personnel files
• Staff disciplinary records
• Surveillance footage
• State agency inspection reports and citations
• Prior complaints
• Facility policies and procedures

Attorneys can also interview witnesses, such as staff members, residents, and visitors, who may be able to substantiate a claim. For example, in cases of neglect resulting from inadequate staffing and poor training, employees may explain what the training process was like and how background checks were conducted.

Nursing home abuse cases often require expert testimony. These provide an unbiased professional opinion on the harm caused and its potential repercussions for the resident, like health complications from neglect. Some states require qualified nurse experts to support negligence claims or may require an affidavit of merit for certain abuse claims. This information can help us identify liable parties, then negotiate for compensation. 

Book a Free Consultation

Nursing Home Law Center is committed to seeking justice for assisted living facility residents and their families. Our team has over 100 years of combined experience investigating potential abuse and neglect, collecting evidence like medical reports, and securing settlements.

Our firm handles qualifying cases on a contingency-fee basis, meaning you pay no legal fees unless we secure compensation. Contact us for a free initial case review to better understand your legal rights.