Many Missouri and Illinois residents have experienced at least one loved one needing to reside in a nursing home facility, whether on a permanent basis or while rehabilitating from a serious injury or illness. Unfortunately, a number of nursing homes across the country are critically understaffed. This understaffing can lead to residents being neglected to a degree that causes them pressure sores, infections, injuries due to accidents and, in the most egregious cases, death due to regular negligence and medical malpractice in nursing home cases.
This often leads to nursing homes attempting to limit a resident’s personal injury claims to medical malpractice damages only, when the truth is that regular negligence usually plays the largest role in this type of case. Some may not understand the difference between the two, or why this distinction actually matters for their loved one’s case.
For something to rise to the level of medical malpractice, it must be closely related to a medical professional rendering medical care to a patient. Medical malpractice cases are more complicated than regular negligence claims.
For plaintiffs to succeed in a medical malpractice lawsuit, they must:
• establish the standard of care in the relevant area;
• show what a deviation from that standard of care would be; and
• prove what their damages would be by having a qualified expert give testimony.
In a regular negligence case, however, jurors who believe that nursing staff members neglected a patient’s care — but find that their actions or inaction did not rise to the level of deviating from a medical standard of care — and their neglect caused injury or death to the plaintiff may be able to determine that nursing facility was negligent. What many Missouri and Illinois residents may not realize is that the vast majority of nursing home negligence injuries actually involve deficiencies in providing ordinary types of care, rather than medical care.
In fact, the U.S. Government Accountability Office determined that nursing facilities demonstrate the largest levels of deficiencies when it comes to quality-of-care services necessary to allow a resident to achieve and maintain as much physical, mental and psychosocial health as possible.
These quality-of-care services include:
• the prevention of pressure ulcers/bed sores;
• sufficient nutrition and hydration;
• the prevention of accidents; and
• assisting residents in bathing and grooming tasks.
This is why it is important to have courts allow victims of nursing facility abuse and neglect the opportunity to pursue a hybrid of both regular negligence and medical malpractice in nursing home cases. In situations where jurors believe that both types of negligence took place, they can then hold the appropriate nursing administration, owners and/or staff members responsible for both types of negligence. Alternatively, if a jury feels that only one type of negligence took place, then justice can be carried out by jurors being free to make the determination they feel best fits the evidence demonstrated at trial.
Our personal injury law firm can assist victims of nursing facility abuse and neglect and their families with pursuing the appropriate types of regular negligence and medical malpractice in nursing home cases. We offer a cost-and-obligation-free consultation to those who are wish to find out more about what the law requires, and whether they may have a viable case.
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Source: “Nursing Home Litigation: Don’t forget the ordinary negligence claim” by Brian G. Brooks, M. Chad Trammell, and S. Drake Martin. August 2011, Volume 47, NO. 08.