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Basics of Elder Abuse and Neglect

By some estimates, some 30% of elders in our long-term care system suffer some form of neglect.  When a family makes the choice to have an elderly family member enrolled in a nursing home, often it is because of the family is no longer able to care for the patient at home.  This entire process can be stressful, but many families draw comfort from knowing that the nursing home has adequate professionals to attend to their elderly relative’s needs at any hour of the day. However, abuse and neglect of the elderly have become all too prevalent in nursing homes. This article will discuss the basics involved in the abuse and neglect of elderly people.

The Centers for Disease Control and Prevention (CDC) records that over half a million older adults aged 60+ years suffer abuse and neglect annually.  As such, there is little doubt that abuse and neglect of the elderly is a real, ongoing problem that needs addressed. One of the ways it is addressed is by way of filing a malpractice or personal injury lawsuit with the assistance of a nursing home negligence attorney [https://www.jeffdowney.com/practice-areas/nursing-home-neglect-and-abuse/]. Civil lawsuits against nursing homes and assisted living facilities provide an important check on neglect in our healthcare system.

According to the World Health Organization (WHO) [Elder abuse (who.int)] elder abuse is “a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person”. Elder abuse is not carried out accidentally. Rather, the perpetrator intentionally or out of neglect causes harm or a serious risk of harm to the elderly individual. Statistics provided by the WHO in 2018 stated that in 2 out of 3 nursing homes and/or long-term care facilities, staff reported some form of abuse committed in their facilities within a 12-month timeframe. Nursing home abuse is prevalent and includes the following forms of abuse:

  • Sexual abuse
  • Emotional abuse
  • Neglect
  • Development of avoidable pressure wounds
  • Physical abuse
  • Abandonment
  • Financial abuse
  • Significant weight loss
  • Malnutrition
  • Severe dehydration

Physical abuse typically includes acts such as hitting and pushing; in addition, medical or physical restraints, if used improperly, can also constitute a form of physical abuse.

Some use the term elder abuse and elder negligence interchangeably. However, they are two different terms. Elder neglect is failure on the part of the caregiver, this may be a staff member at a care facility or a family member, to fulfill their obligations to the patient.  Elder neglect is typically a form of negligence as the caregiver is not intentionally causing harm to the patient.

If your loved one is subjected to elder abuse or neglect while in a nursing home the legal liability may be premised on the following failures:

  • Not adequately staffing the facility
  • Failure to adequately train their staff
  • Hiring of unqualified staff members
  • Inadequate assessment or care planning
  • The development of pressure wounds or decubitus ulcers
  • The breach of the regulatory or statutory obligations of the facility
  • Errors in medication admistration

In Virginia, Abuse or Neglect of an incapacitated adult is a crime under Va. Code 18.2-369 (link _ https://law.lis.virginia.gov/vacode/title18.2/chapter8/section18.2-369/)

Under this code provision, abuse means (i) knowing and willful conduct that causes physical injury or pain or (ii) knowing and willful use of physical restraint, including confinement, as punishment, for convenience or as a substitute for treatment, except where such conduct or physical restraint, including confinement, is a part of care or treatment and is in furtherance of the health and safety of the incapacitated person.

In Maryland, abuse is defined by Section 14-101 of the Family Law article, Annotated Code of Maryland, which defines abuse as “sustaining of any physical injury by a vulnerable adult as a result of cruel or inhumane treatment or as a result of malicious act by any person. “

It must be noted that the nursing home facility and its corporation head are, by extension, vicariously liable for any misconduct or abusive acts carried out by its employees. This typically includes any acts that are performed while undertaking their assigned job responsibilities.  However, intentional abuse, like rape, may lie outside the scope of vicarious liability depending on the facts of the case.

If you suspect elder abuse or neglect, call the Law office of Jeffrey J. Downey for a free consultation.   If your loved one is in immediate jeopardy, call the police or Adult Protective Services.  To learn how and where to report abuse in Virginia, Maryland and DC, review this link. (https://www.jeffdowney.com/reporting-abuse/)

The Law Office of Jeffrey J. Downey

8270 Greensboro Drive, Suite 810

McLean, VA 22102

Email: jdowney@jeffdowney.com

Phone: 703-564-7318 or 703-564-7357

Fax: 703-883-0108

Website: https://www.jeffdowney.com/

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