Lawyers Protecting Rights Of Nursing Home Residents
27 Jul 2007
For too many years it was a dirty secret that there was rampant abuse and neglect in nursing homes. It is a secret no more.
Leading the way in exposing the neglect are lawyers, now armed with tough new laws passed by some state legislatures fed up with the status quo.
It used to be that lawsuits were rarely pursued by families victimized by nursing homes because the justice system did not put much value on old people. Traditional use of mortality tables would show the victim of nursing home abuse as having only a few years of life expectancy, a common measure of future damages. There would obviously be no real loss of earning capacity.
Today the victims of nursing home abuse can fight back, thanks to a legal system that now listens and lawyers who are willing to fight the expensive battles against well financed adversaries.
In 1992, the California Legislature passed tough new laws relating to elder abuse. In the introduction to the new law, the Legislature complained about the historical legal landscape: "Infirm elderly persons and dependent adults are a disadvantaged class . . . cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays and the lack of incentives to prosecute these suits." The Legislature then made a remarkable statement, given the predominant view that lawyers are the cause of all problems in the world: "It is the . . . intent of the Legislature . . . to enable interested persons . . . to engage attorneys to take up the cause of abused elderly persons."
Similar legislation was passed in Florida to provide specific rights and remedies for nursing home residents. The Florida statute also encourages the involvement of attorneys in the pursuit of the remedies provided.
These legislatures knew what they were doing. They knew that elder care is extremely difficult and often thankless work, usually done well only by those who are well-paid and well-trained. But they also knew there is a line beyond which no caregiver should cross--into the realm of reckless conduct and abuse--and when that line is crossed, the nursing homes must pay.
This explicit validation of lawyers and lawsuits is unprecedented. Not even the powerful lobby representing nursing homes could stop it.
Why did it happen? The weak needed protection; the regulators had failed--the injury lawyers were competent and willing to take on an industry.
Every legitimate case of elder abuse involves a crossing of the line into outrage. But most cases also illustrate the problems with a system that does not provide adequate training to nurse aides, lacks proper enforcement manpower and, most critically, lacks the government and private insurance funds that would make a difference.
In the meantime, there is absolutely nothing wrong with arming consumer attorneys with the tools needed to punish willful, wanton and reckless acts perpetrated on those so obviously unable to protect themselves.
There is nothing wrong with the empowerment of the elderly to assure that they are properly treated in the very facilities designed to provide comfort in their declining years and health. Their rights deserve protection and are finally getting it through the efforts of experienced attorneys.
