Anatomy of a Nursing Home Negligence Claim

by | Sep 20, 2022 | Nursing Home Abuse And Neglect

Most nursing home negligence claims start with understaffing. 94 percent of long-term care facilities in Fayette County are seriously understaffed. Negligence is quite common in understaffed environments. Employees are pushed to the breaking point. When one person does the work of two or three people, the one person feels stressed and often takes shortcuts. Additionally, to plug the gaps, many nursing home administrators hire pretty much anyone who meets the baseline qualifications. Red flags, like gaps in employment or sudden departures, are ignored.

Compensation is available for negligence-related injuries if the nursing home had a duty of care, which it usually did, and the nursing home administrator knew, or should have known, about the hazard, which it probably did. Nursing home residents and guests are usually invitees in Kentucky. In these cases, the owner has a duty of care to ensure the premises are reasonably safe. 

Direct or circumstantial evidence could prove knowledge. Direct evidence includes “smoking guns” like resident complaints and cleaning reports. Circumstantial evidence usually involves the time-notice rule. The longer a hazard existed, the more likely it is that the owner knew about it and, because of the duty of care, should have addressed it.

Additionally, a Lexington personal injury attorney can use vicarious liability theories, like negligent hiring and negligent entrustment, to establish nursing home liability in these cases. Basically, negligent hiring is hiring an incompetent worker. Negligent entrustment is essentially a failure to properly supervise workers. Compensation in a negligence case usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Negligence Injuries

As the old saying goes, accidents happen. Negligence is different. These injuries are preventable, which is why nursing home owners are financially responsible for them. Some examples include:

  • Falls: Most nursing homes are nearly constantly under construction. Well-staffed nursing homes have employees near dangerous areas to gently redirect wandering nursing home residents away from them. Understaffed facilities don’t provide such care, so residents fall and get seriously hurt.
  • Bedsores: Pressure ulcers may be the most common, and most dangerous, staff level-related negligence injuries. Residents must turn themselves over in about once every two hours to avoid these pressure ulcers. For various reasons, many residents depend on staff members to turn them over. Often because of understaffing, the facility lets them down. If they fester, these open sores are life-threatening.
  • Malnutrition: Our senses degrade as we get older. This process includes not only hearing and vision, but also smell and touch. If food doesn’t smell or taste good, residents probably won’t eat it. Only well-staffed facilities have dieticians and other professionals who ensure residents eat what they’re served. Malnutrition could be a standalone injury or make something else, like bedsores, worse.

Honorable mention, or dishonorable mention depending on your perspective, goes to resident-on-resident assaults. Understaffed facilities don’t place employees in common areas to break up petty fights before they turn violent. 

Many residents are so frail that a tiny amount of force causes a serious injury. The same thing applies to the other injuries on this list.

Starting a Claim

Once medical treatment is at least substantially complete, a Lexington personal injury attorney usually opens informal settlement talks with the defendant, which is usually an insurance company. If negotiations start too early, the settlement won’t account for all future medical expenses, meaning the victim will be financially responsible for them.

If all issues in the case, especially legal responsibility and the degree of damages, are clear, the case may settle almost immediately.

Unfortunately, these matters are almost never straightforward. Common insurance company liability defenses include comparative fault, which shifts blame for the incident to the victim, and assumption of the risk, which is a voluntary assumption of a known risk. Additionally, insurance adjusters only approve the cheapest medical treatment and other fixes. The cheapest way isn’t always the best way.

Ending a Claim

Because of these disagreements, most nursing home negligence claims end during mediation. A Fayette County judge appoints a third-party mediator, who is usually an unaffiliated Lexington personal injury attorney, to oversee negotiations at a special session.

The mediator ensures both sides negotiate in good faith. A take-it-or-leave-it offer isn’t a good faith negotiation tactic. Neither is a low-ball offer. Additionally, both sides must compromise to reach an agreement. They cannot simply go through the motions.

Because of the court supervision element, and also because the judge won’t be happy if mediation fails, mediation is about 90 percent successful in Kentucky.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. After hours, home, virtual, and hospital visits are available.