We trust nursing homes to take care of our loved ones, but this isn't always the case. If you suspect your elder family member has been abused or neglected in an assisted care facility, you may be wondering:
- How can I prove my loved one was neglected or abused?
- Who can be held liable for elder abuse?
- What damages could I recover in an elder abuse lawsuit?
Our elder abuse victims' lawyers can help you and your elderly loved one stand up for your rights and get the support you need.
"Thank you." They made sure our mother got justice for what she went through.
Elder abuse remains a persistent – and growing – problem throughout America.
Epidemic Of Elder Abuse Threatens Seniors
The elderly population is expected to increase by leaps and bounds in the coming years. The US Census Bureau estimates that, by 2025, over 62 million citizens will be 65 or older.
This growing elderly population only creates more opportunities for depraved individuals to abuse and neglect some of the most vulnerable members of our society. In today’s America, our elderly loved ones are already losing out.
Between 1 and 2 million elders have been injured, exploited or emotionally abused by the people on whom they depend, according to estimates from the National Research Council, a nonpartisan organization devoted to providing evidence-backed research to policymakers. Yet this growing epidemic remains largely invisible.
Criminal Justice System Struggles To Address Problem
Few government agencies have devoted their time and resources to studying the problem. Solutions, both on the criminal and civil levels, have been scattered in their implementation and meager in their accomplishments. Criminal prosecutors often lack a basic understanding of the criminal activities that make up elder abuse, especially in cases of neglect.
Even when a conviction is secured, the criminal justice system leaves much to be desired. Victims and families are often left with severe emotional trauma and physical injuries, but compensation can be hard to come by.
Victims' Compensation Funds Are Limited
Administered by state governments, victim compensation funds provide necessary financing for some victims, but also impose strict limitations on award levels and fail to account for pain and suffering.
Court judgments that require convicted criminal offenders to pay restitution to their victims operate similarly, restricting financial awards to economic damages.
How Civil Elder Abuse Lawsuits Work
The civil justice system offers another avenue for recourse. While few families are fully aware of their legal rights, many victims have the right to pursue financial compensation in a civil lawsuit. In tragic cases of a loved one’s death, surviving family members may be able to file a wrongful death claim.
These civil claims, which are distinct from criminal prosecution, can be filed against the perpetrators of abuse, but also against negligent third-party entities. What does that mean? In many cases, families are eligible to sue a nursing home, assisted living facility or other long-term care institution for failing to protect their loved one’s health and safety.
Criminal vs. Civil Lawsuits
Assault. Sexual abuse. Murder. These are crimes, whether or not they occur on the streets of a major American city or behind the closed doors of a nursing home. But when these crimes take place inside an elderly care facility, the responsibility for the physical injuries and emotional suffering of victims doesn’t fall solely on the shoulders of a criminal offender.
Nursing homes and assisted living facilities have a legal duty to protect residents and provide them with a reasonably safe living environment. When these institutions fail to uphold their obligations, allowing harm to befall elderly residents, they can be held accountable in court.
Can You File A Lawsuit & Press Charges?
Yes.
Civil and criminal proceedings aren’t mutually-exclusive. Families don’t revoke their right to press criminal charges by filing a civil lawsuit based on the same illegal conduct. In fact, many civil plaintiffs benefit from parallel criminal proceedings.
The filing of criminal charges, for example, can give families and victims more time to consult with private attorneys and prepare their civil case, since many states pause the civil statute of limitations when criminal proceedings are underway.
In some cases, the conviction of a criminal offender can even be entered as evidence of responsibility in the victim’s civil proceedings.
Theories Of Elder Care Liability
Most civil lawsuits filed against elder care facilities in relation to criminal activity are founded on two well-accepted legal principles.
Negligent Hiring & Retention
Elder care facilities have a duty to screen potential employees before hiring them, filtering out dangerous individuals who could harm residents. Background checks are a common step in most hiring processes.
Checking references and verifying professional credentials are likewise critical to identifying potential hires who may not be an appropriate choice. In a similar vein, employers are tasked with maintaining resident safety across time, in part by responding to inappropriate conduct quickly and forcefully.
Failing to vet potential employees is a serious act of negligence, one that can put our loved ones in harm’s way. So is continuing to employ someone who has already caused harm to other residents. When an employee with a past history of violent or criminal conduct goes on to commit further harm, the employer can be held partially responsible.
Negligent Supervision
Nursing homes and assisted living facilities are required to hire employees in a manner that best promotes resident safety. After hiring, they assume another duty, an obligation to adequately supervise the behavior of employees as they carry out their job duties.
The doctrine of negligent supervision is usually invoked when attorneys find evidence that an elder care facility ignored prior instances of physical or financial abuse committed by the offending employee.
In limited cases, managers can also be held accountable for the actions of their subordinates. The theory may even come to encompass incidents in which one elderly resident abuses or assaults another resident.
What Is Elder Abuse?
Legal scholars tend to break the broad concept of “elder abuse” into four distinct categories of mistreatment:
- physical abuse
- sexual abuse
- neglect
- financial abuse
A majority of states have now criminalized elder abuse in some way, but these state-level statutes can vary significantly. The National Research Council provides a general definition:
- intentional actions that cause harm or create a serious risk of harm to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder, or
- failure by a caregiver to satisfy the elder’s basic needs or to protect the elder from harm
As we can see, the term “elder abuse” has been defined to include instances of both abuse and neglect, also coming to cover incidents in which a caregiver fails to provide adequately for an elderly person’s basic human needs.
The definition’s emphasis on protection also clearly includes cases in which short- or long-term care facilities (like nursing homes and assisted living facilities) allow, either intentionally or through negligence, an employee to abuse or neglect an elderly resident.
Variations In State Criminal Law
Most states see little distinction between the concepts of abuse and neglect for the purposes of criminal prosecution.
Alabama’s criminal statute defining a second-degree felony of elder abuse and neglect is illuminating. The law (AL Code § 13A-6-193) covers all reckless and intentional forms of both abuse and neglect that cause physical injury to an elderly person. Likewise, the State’s first-degree felony is written explicitly to include instances of both abuse and neglect.
The Varying Definitions Of "Elder"
Most states now follow this basic structure, prohibiting both abuse and neglect and increasing penalties based on the perpetrator’s degree of intent. The major difference between state laws is what we mean by “elder.”
In Alabama, an elderly person is defined as anyone 60 years of age or older. South Dakota, on the other hand, defines an elder as 65 or older. Some states disregard the victim’s actual age and focus instead on their cognitive, physical and emotional capacities.
In many cases, district attorneys don’t need a tailored law to prosecute elder abuse, since the majority of acts that constitute elder abuse (murder, assault and battery, sexual assault) are already illegal in every state. Securing justice, however, is a different story.
The Nature Of Elder Abuse Hinders Prosecution
The dynamics that influence elder abuse and empower perpetrators to commit their horrendous crimes are unique. Prosecution is often extremely difficult. In some cases, the only witness to a crime will be the elderly victim him or herself.
Cognitive and physical impairments can make it difficult, or impossible, for a victim to participate in the criminal justice system. Likewise, determining whether or not an elder has consented to being treated in a certain way can be hard.
Family Members & Acquaintances
An even darker problem emerges when we recognize who is most likely to victimize an elder. As the National Council on Aging reports, around 60% of elder abuse and neglect investigations discover that the perpetrator is a family member. As a result, the majority of victims face huge hurdles to reporting the crime and pursuing justice.
Love. Financial dependency. Fear, both of retaliation and of being institutionalized. These themes crop up in case after case, standing in the way of elders who could be helped by the criminal justice system, but see no way out of their situation.
Finding An Elder Abuse Attorney
At CrimeVictim.law, we believe that every victim and every family should be given the opportunity to pursue financial compensation for their losses.
This website is sponsored by a national alliance of attorneys, all working together to protect the legal rights and interests of crime victims and their loved ones throughout the country. Our lawyers always offer their services on a contingency-fee basis; clients pay us nothing until we secure compensation in their cases.
Learn more about your family’s rights now. Contact us today to secure a free consultation and find more information about your options. There’s no charge and no obligation. Just the answers you deserve.