Nursing Home Abuse FAQ’s

What are the rights of nursing home patients under federal law?

Although many nursing home patients frequently feel trapped within the situation they are currently in, nursing home patients actually have many rights granted to them under federal law.  Federal law empowers nursing home patients to make decisions with respect to their medical treatment and personal care.

Federal law guarantees the following:

1. The right to participate in your care planning along with the right to refuse particular treatments.

2. The right to privacy and to be treated with dignity and respect.

3. The right to have your own physician and/or pharmacy.

4. The right to be free from restraints.

5. The right to be informed of nursing home policies and procedures.

6. The right to know about all medical care and conditions.

7. The right to know of the services the facility provides and the exact charges for such services.

8. The right to privacy when it comes to your medical records.

9. The right to use your own clothing and possessions.

10. The right to manage personal finances.

11. The right to be free from abuse in any form including: physical, sexual, neglect or isolation.

12. The right to stay at a nursing home as long as the facility is capable of attending to medical needs, payment is timely made and the facility continues to operate.

13. The right to speak freely about poor care.

14. The right to have visitors.

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Who regulates nursing homes?

In most states, nursing homes are regulated by a combination of state (Department of Health) and federal authorities (U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services [CMS]).  Each agency has its own regulations that control all aspects of the nursing home including: resident care, staffing, policies and procedures and medical equipment.

Because nursing homes are responsible for complying with state and federal regulations, agents from either agency conduct inspections of the facility to assure compliance with the regulations.  These inspections are called ‘surveys’ and are generally done unannounced at least one time per year. Surveys may be conducted more frequently at facilities with a history of prior violations or in response to a complaint regarding resident care.

After each survey a report is completed regarding the facilities compliance with applicable regulations.  If the findings do not immediately threat patient safety, nursing home administrators will have an opportunity to review the survey findings and propose a ‘plan of correction’.  If however, surveyors find conditions that pose a threat to patient safety, they have the ability to impose a variety of penalties including: fines, appointed facility supervisors, suspension of new resident admissions or license suspension.

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How do I get a copy of medical records from a nursing home?

Getting medical records from a nursing home, physician or hospital can be a daunting task due to privacy regulations (HIPPA) and misunderstanding of the laws that apply to obtaining the records– both on the part of the person requesting the records and on the part of the medical facility.

 

Portion of an Inpatient Medical chart with binder tabs. The ghosting and legibility of some of the type is due to wear and tear and carbon copy paper.

Nonetheless, federal and state laws ensure patients and their authorized representatives are entitled get copies of medical records when the laws are complied with. This includes the right to inspect and copy the resident’s clinical records and other records regarding the resident’s care and maintenance that are kept by the facility or by the resident’s physician.

A request for copies of the records must be in writing and delivered to the administrator or manager of the health care facility or to the health care practitioner. The person requesting copies will reimburse the facility for all reasonable expenses. The health care facility must respond to a written request within 30 days of the receipt of the written request.

If the facility needs more time to comply, the facility must provide the requesting party a written statement of the reasons for the delay and the date by which the requested information will be provided. In any case, the facility must provide the requested information no later than 60 days after receiving the request.

Federal law provides that the resident or the resident’s legal representative has the right to access all records including clinical records within 24 hours and receive photocopies for a standard charge. (42 CFR §483 – Resident’s rights) The resident also has the right to personal privacy and confidentiality of all personal records. As such, the resident may approve or refuse the release of personal and clinical records to any individual outside the facility unless resident is transferred to another health care institution or release is required by law.

Tips:

  • Do not tell the facility why you are requesting the records
  • Keep copies of all record requests
  • Send the request via a method to confirm the facility has received the request
  • Request the records as soon as you believe you may be interested in getting them
  • If you are an authorized representative, attach a copy of any relevant paperwork granting such authority to do so
  • Always request a complete copy of the chart

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I was contacted by a representative, risk manager,  from a nursing home to discuss the circumstances surrounding my mother’s injury.  Should I talk to them?

No.  Contact a lawyer before you discuss your situation with anyone else. While it may appear as though the risk manager is attempting to gather information / resolve matters quickly, their allegiance remains with the nursing home! The nursing home representative’s goal is to save his company as much money as possible.

In many cases, nursing home representatives may try to take advantage of your inexperience with resolving injury claims and mislead as to the true value of a claim.  As an injured party or a representative for an estate of a deceased person, you have the right to speak to a lawyer first and even to have a lawyer present when you meet with representatives from a nursing home.

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How long does it take to settle a nursing home injury claim?

The time required to resolve a nursing home injury claim may take anywhere from several weeks to several years. Unlike other types of injury-related cases, nursing home negligence claims tend to be more complex with extensive medical records and bills.  Despite the complexity, many nursing home negligence cases can be settled without the need for a lawsuit after the facilities records have been analyzed and a report from a nursing expert is obtained.

You only get one bite of the apple.  In cases involving future medical treatment, it is generally not a good idea to consider settlement until your condition has stabilized or is complete. Once a condition has stabilized it is easier to get an accurate picture of the extent of the injury and the related damages.  In cases where a settlement can not be reached with the insurance company, a lawsuit against the nursing home may need to be filed.

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How much is my nursing home negligence case worth?

The value associated with a nursing home negligence or wrongful death case is dependent upon a number of factors including the: the severity of the conduct on the part of the facility, age of the patient and degree of injury– just to name a few.   Before the value of a case can realistically be discussed, it is important for a lawyer to thoroughly review the patient’s medical records and research the potential causes of action.

Values of individual cases also vary substantially based on the jurisdiction.  Some states have laws that limit the amount a person or estate can recover.  However, most states recognize the following types of damages:

  • Pain and suffering
  • Medical expenses
  • Lost income
  • Disfigurement
  • Loss of normal life

In cases where a person died, the deceased person’s heirs may be able to pursue a wrongful death claim which entitles them to damages for the loss of their loved one.  In the case where an individual suffered an injury prior to their death, the estate may pursue a claim  for survival damages, which allow a recovery for the individuals pain and suffering prior to their death.

Decisions made with respect to settlement values of cases are made by the injured person or a designated representative for their estate. No lawyer should settle a claim without authorization from the proper decision maker.

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What are some good resources to learn more about nursing home injuries and abuse?

The internet is crammed with various sites offering advice or services on one aspect or another, here are some web resources that I suggest you look at when initiating a search:

  • Medicare: Nursing Home Compare Contains star-ratings of all nursing homes that receive Medicare funding.  Includes ratings on based on staffing levels, inspection reports and quality measures.
  • The National Consumer Voice For Quality Long-Term Care Information for families and patient advocates regarding nursing home and home-based care.  Also contains a national listing of nursing home Ombudsmen.
  • Nursing Homes Abuse Blog Daily discussion of frequently encountered nursing home injuries and sources of abuse including: bed sores, medication errors, falls, physical abuse, medical errors, malnutrition and wrongful death.
  • National Pressure Ulcer Advisory Panel Leading resource regarding pressure ulcer prevention and treatment through public policy, education and research.  Also contains the latest information regarding pressure sore staging.
  • Bed Sore FAQ Bed sore articles, bed sore glossary, bed sore research studies, bed sore books, bed sore treatment specialists and answers to frequently asked questions pertaining to all aspects of bed sores.
  • Child Injury Law Blog Discussion and resources for children who have been abused or mistreated in: foster care, day care, group homes or a religious setting.

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