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Nursing Home
Injury & Abuse
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New York Nursing Home Injury & Abuse Lawyers

America’s population is aging, and more people are making the difficult decision to place their elderly loved ones into nursing homes and long-term care facilities. We all hope that those homes will be comfortable, well-managed places that will protect our family members.

Unfortunately, not everyone is as compassionate and caring as we would hope. 

Learning an elderly parent or relative has been mistreated in a nursing home is one of the worst kinds of betrayal. If this has happened to you, we can help.

If your loved one was a victim of nursing home abuse or neglect and was injured, call the New York nursing home abuse attorneys of Burns & Harris Attorneys At Law today. We can help you hold the facility accountable for your loved one’s losses. Call 800-724-6529 for a free consultation.

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How We Can Help

If you have discovered that your parent or other loved one has been abused or neglected at their nursing home or care facility, you need good legal assistance to get both of you the compensation you deserve for the injuries you have suffered. At Burns & Harris Attorneys At Law, we have a proven record of fighting for our clients and obtaining the best possible outcome in negligence, abuse, and malpractice cases.

Nursing Home Neglect and Abuse Defined

There are two broad categories of nursing home misconduct: abuse and neglect.

Abuse is broken down into subcategories based on what is happening to the patient.

Physical abuse

Is any type of contact intended to harm or injure the patient. Physical abuse may include hitting, pushing, pinching, or slapping. It can include less aggressive forms of abuse, such as overuse of restraints, moving the patient too fast, or sadistic teasing behavior.

Emotional abuse

Can go along with physical abuse. Emotional abuse is any non-physical act intended to frighten, intimidate, or harass the patient. Shouting, name-calling, belittling, or threatening violence are forms of emotional abuse. Less obvious forms of emotional abuse may include denial of food or water or threats to do so, isolation, and lying to the patient (“Oh no, your daughter never calls here,” knowing the daughter has called three times that day) are all types of emotional abuse.

Sexual abuse

Occurs in nursing homes to all genders, perpetrated by both males and females. Beyond obvious sexual assault such as rape, forcible penetration, or fondling, sexual abuse may encompass unnecessary bathing or diaper changes, peeping, stalking, and other sexually related behavior.

Financial abuse

In nursing homes may occur at the administrative level, with the patient’s benefits being diverted from their use, false charges or rent increases, and other tampering with the patient’s finances. Staff members, who have less direct access to a patient’s bank account, may use fraud, coercion, or undue influence to coax the person into giving them money, or they may take things from the patient’s room, such as jewelry.

How We Can Help

Neglect may be more difficult to spot because elderly people may be unhealthy or declining. Some medications make eating unpleasant. Older skin bruises easily and heals slowly, even from a minor bump. Older people may downplay injuries or ignore them (“Oh no dear, my arm doesn’t hurt.”). Family members should look out for unexplained or severe incidents or situations that are not resolved after the initial complaint.

Untreated broken bones, cuts, and bruises

Even without physical abuse, older people may be prone to falls and may suffer minor injuries. A good facility should be paying attention to such injuries, treating them quickly, and reporting them according to guidelines. Refusal of care should be documented.

Malnutrition and dehydration

Older individuals are at risk for both conditions. Many elderly people, especially those with chronic health conditions (such as cancer or COPD), may lack appetite. Sedentary lifestyles lead to inadequate water intake. Some patients may need assistance eating. If the facility rushes residents through meals or fails to monitor intake, it can be as dangerous as if they were withholding food deliberately.

Bedsores and other wounds

Bedsores, or pressure sores, are a result of an immobile patient being left in one position for too long. They may also result from ill-fitting shoes and poor circulation, causing wounds around the ankles and feet. Patients who use adult garments must change them regularly, or risk urinary tract infections (UTIs), yeast infections, and rash.

Abandonment

Nursing homes should provide recreation and entertainment for the residents. Many elderly people need to be encouraged to participate, especially those suffering from age-related depression or dementia. Patients should not be left alone in their rooms for extended periods of time, even if they “want to be left alone."

New York has laws that cover the operation and administration of hospitals and nursing facilities within the state. These laws specifically describe the minimum standards that must be met by any nursing home or care facility. 

Unfortunately, New York is one of the few states that does not have mandatory reporting laws in effect for elder abuse or neglect. Doctors, nurses, and other care professionals who may encounter such abuse are not required by law to let anyone else know about it. Unless the person has been adjudicated incompetent and is under the care of adult protective services, law enforcement may not be informed about abuse at a nursing home unless relatives complain.

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Who Is Responsible for Abuse and Neglect?

Anyone who abuses a resident in a nursing home may be criminally responsible for their actions. Battery, fraud, and gross negligence resulting in injury may all lead to criminal charges for the person who performed them.

However, this won’t lead to compensation for the injury, pain, and suffering endured by your loved one. When you look for who is responsible for the abuse and neglect of a family member, you need to look at how the abuser came into contact with your relative.

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Negligence: A Quick Primer

When you and a family member decide that a nursing home is the best place for your loved one to live, you expect the home to be homelike. You expect it to provide a safe, caring environment and to have staff and caregivers who have been properly screened and trained to carry out their duties.

New York law also has these expectations. The law spells out the minimum requirements for operating, staffing, and running a nursing home. These requirements, and your expectations, establish a duty for the nursing home.

To successfully bring a personal injury claim, you need to prove four things in court:

The nursing home had a duty to behave in a certain way

The law establishes that there is a duty to hire and operate nursing homes according to a minimum standard.

The nursing home breached that duty

If they hire careless, abusive, or negligent staff and knew or should have known about the risk the staff posed to their residents, they have breached their duty to protect their residents.

The breach was the actual cause of the injury

In other words, if the nursing home had not hired this person or had followed these guidelines, the injury would not have happened.

The injury was reasonably foreseeable because of the breach

Also called “proximate cause,” this means that the nursing home operators should have realized that these conditions could cause injury but did nothing to correct it.

There must have been an injury

You cannot bring a civil suit just because something “could have happened.” There must be measurable harm to someone before you may sue.

If a nursing home hires someone they know has a questionable past or keeps that person after allegations of misconduct, then they become liable for any harm done by that person. If the administrators are aware of poor conditions or complaints about the status of a home and do not take reasonable steps to correct them, then they are responsible for any harm that comes from those conditions.

For instance, if an aide is accused of hitting a resident, management should immediately investigate and determine what happened. If the accusation is valid, then the aide should be disciplined according to state guidelines. If not, then the management is taking vicarious liability for all subsequent harm done by that aide. 

Others may be liable in the same way if they are aware of harm being done by anyone under their employ. That can include:

Doctors who treat residents can be liable for the harm they do and for harm inflicted by any staff members the resident may encounter.

Nurses and supervisors may be held accountable for anything their staff members do and for failing to report up the chain of command.

The parent corporation is responsible for all abuses that were done under their umbrella. If they were never informed of the problems, they could be liable for failing to audit their company.

Third-party defendants, such as vendors or outside caregivers, may pose a separate legal problem. A repair company that sends in a mechanic to fix an air conditioner is responsible for their mechanic, but the nursing home has no real ability to vet everyone who enters the property. However, they do have a duty to ensure they are dealing with reputable companies.

For instance, suppose a mechanic is sent in for the air conditioner, and while there, the mechanic shoves an elderly resident. Normally, the nursing home would not be responsible for that injury. However, if a check of the company’s online reviews shows that they have several complaints of rude or aggressive mechanics, this might be grounds for questioning why the nursing company didn’t know about this.

Reporting Nursing Home Abuse

If you have a relative who has been injured in a nursing home, you should immediately remove them from that home. Before you seek a legal remedy yourself, you should also report the abuse to the state of New York.

The New York State Department of Health maintains a 24-hour-a-day, seven-day-a-week hotline and online complaint form for residents and family members who are aware of abuse and neglect in nursing homes around the state. When a complaint is filed, investigators will review the complaint and then carry out whatever investigation and steps are necessary to resolve it. 

People are often reluctant to report abuse and neglect for fear of retaliation by the nursing home or from embarrassment or “not wanting to be a bother.” Unfortunately, this allows small problems to grow into bigger ones. Everyone who knows of incidents of abuse or neglect should let the state investigators know immediately, so that issues can be caught and corrected early.

How Long Do You Have?

There are varying statutes of limitation for reporting and filing nursing home lawsuits. Depending on the nature of the injury, you have anywhere from one to five years to bring a complaint.

  • Personal injury: three years. This is the usual kind of lawsuit filed for nursing home abuse. The statute runs from the first date that the injury was known or reasonably should have been known.
  • Wrongful death: two years. The personal representative of the estate must file this suit.
  • Theft: three years. Theft covers not only the pilfering of personal items but also the theft of benefits, misappropriation of funds, and other deprivation of property.
  • Medical malpractice: two years and six months. This statute provides a set period of 30 months to sue for damages either from the date of a single injury (like surgery) or from the last date of continuous treatment by the defendant. For instance, if a doctor had been treating a resident for five years, the statute begins to run on the last date of those five years. There are exceptions:
    • If a foreign object is left in the person’s body, the action may be commenced within one year from the date the object was discovered or should have been discovered, whichever is earlier.
    • Where the action is based upon an alleged failure to diagnose cancer or a malignant tumor, the action may be commenced within two years and six months of the later of either (1) when the person knows or should have known of the misdiagnosis, so long as the action is commenced no later than seven years after the misdiagnosis; or (2) the date of the last treatment where there is continuous  treatment for such  injury, illness or condition.
  • Emotional distress. If someone engages in a pattern of behavior intended to cause emotional distress to the victim, the victim can sue. The statute depends on the nature of the activity.
    • Negligent infliction of emotional distress: three years. This is a pattern of conduct that causes emotional distress where the defendant knew or reasonably should have known that the victim was distressed and failed to correct the behavior. 
    • Intentional infliction of emotional distress: one year. When the actor intends to cause distress and does so maliciously, the victim has a right to sue.

Emotional distress can be confusing to explain. Suppose a resident is suffering serious depression following the death of their spouse. Even a mention of the spouse’s name causes the resident to break down in tears. Negligent emotional distress would be when staff members carelessly ask about the spouse, even though they know it upsets the resident. Intentional emotional distress would be when a staff member mentions the deceased spouse as often as possible, intending to make the resident cry.

When It’s Time to Call Us

When you need to sue a nursing home for abuse or neglect, it’s important that you contact legal assistance right away. The steps for suing the perpetrator and the nursing home are complicated. Suits only proceed against the named party, so you must be sure to get everyone on the complaint. Suing the nurse’s aide may be satisfying but will probably not garner you the compensation you and your loved one deserve for your injury and pain.

Once you retain the New York nursing home abuse attorneys from Burns & Harris Attorneys At Law, our legal team will begin the process of investigating the claim, interviewing possible witnesses, and obtaining the documents necessary to establish your case.

Investigation

The first step of filing a lawsuit is the investigation. For a nursing home case, this would include obtaining the resident’s medical records, nursing home records (such as resident records, hiring records, and staffing schedules), and locating any witnesses or others with knowledge of the case. We would also gather photos of the scene and videos if available.

Documentation

Once the investigation is complete, the team assembles the documents into a coherent case. This is important because you must prove (or your relative must prove) that the nursing home was aware of the harm being done and did nothing to correct it. You need documents that show when the harm occurred, whether steps were taken to remedy it, and the total amount of damages you suffered.

Negotiations

Before the lawsuit can be officially filed, your attorney will attempt a resolution with the nursing home. In a civil lawsuit, you can only receive compensation for injuries, so to avoid litigation, the courts require pre-trial negotiation. Your attorney will send a demand letter to the nursing home detailing the investigation and requesting compensation. Sometimes the nursing home will agree. Otherwise, you go to the next step.

Filing suit

Your attorney will file a complaint against the nursing home and anyone else who is involved in the case. Once they receive it, the facility has a set period to reply. Now the case is in court, and things slow down. Your attorney and the legal team will answer all the requests coming from the other party, file any documents needed, and appear in court as needed.

Trial

If no resolution can be reached before the trial date, your case will go to court. Your attorney will present the case to the judge and respond to any challenge or claim by the nursing home. The case will be decided by the judge or jury, and they will decide how much compensation should be awarded for what losses.

Filing a personal injury claim against a nursing home and taking it to settlement or trial can take several years. Typically, a personal injury claim takes about three years to resolve.

Don’t Delay. Call Us for Help Today

If you believe you or a loved one have experienced neglect or abuse in a nursing home or care facility, contact Burns & Harris Attorneys At Law at 800-724-6529

We will review your case and give you our best recommendation on how to proceed. Don’t wait. We are here to help.  You can also fill out our intake form and a member of our team will call you.

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