ELDER
ABUSE
Whether
we want to admit it or not, the incidence
of elder abuse is on the rise. Negligent
care and nursing home abuse has become
a serious and widespread problem.
According to the National Center on Elder Abuse, between the years of 1986 and
1994, the number of cases of elder
abuse jumped from roughly 120,000
to 240,000. As Americans place
spouses, parents, grandparents and
other loved ones in nursing home facilities,
the thought of them suffering abuse
or even less-than-adequate care is
certainly cause for alarm.
Cause
of Rising Elder Abuse
Perhaps
the single most important reason for
the rise in negligent care is due
to the growing number of senior citizens
in this country. One indication of
the rising numbers is evidenced in
the recent debates over issues such
as Medicare and Medicaid, social security,
and prescription drug prices. Older
Americans are flexing their political
muscle for the protection of services
that are becoming increasingly important
to them. As the baby boomers and the
generation before them ease into their
golden years, there has been a rise
in the number of nursing homes and
facilities to house them and care
for them.
Another
important factor in the rise of elder
abuse cases is that Americans are
living longer. While it was once rare
for Americans to reach their 90th
or 100th birthday, today
it is a common occurrence. The result
is that older Americans are staying
in nursing homes for longer periods
of time.
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There
has also been a rise in the number
of nursing homes and facilities that
have sprung up to meet the demand
of the rising number of senior citizens.
While some of these facilities certainly
provide excellent services and care,
others do not. Some of these facilities
are staffed by uninterested, abusive,
and under-trained staff that are often
times the main perpetrators of nursing
home abuse. Experts have estimated that well over 30,000 older Americans die prematurely
due to some form of negligence, abuse
or mistreatment.
Many
existing homes for senior citizens
are now filled to capacity, often
in an effort to maximize their profits.
While the number of residents increases,
this is not always met by a concomitant
rise in the number of staff to care
for them. This can places tremendous
stress on a staff that is overworked
and perhaps under-trained. This can
lead to low quality nursing home care.
Residents in such homes are frequently
ignored, neglected, or physically
abused.
Evolution
of Elder Abuse Law
As
the incidence of elder abuse increased
over the last 15 years, there was
a response from the legal community
to safeguard our older citizens. Back
in 1987, as the number of reported
cases of negligent care and abuse
was skyrocketing, the Federal Government
enacted certain Amendments to the
Older Americans Act. The
1987 OBRA amendments included the
first federal resident rights provisions.
These provisions outline the minimum
standards of health, safety, patient
autonomy, notice requirements, and
fiduciary duties of facilities. Failure
to comply with any federal provisions
would now result in a loss of Medicare
or Medicaid certification for the
facility. States are now also required
to have a Bill of Resident Rights
that are at least as protective as
the federal statutes. This
was also the first time that the federal
government defined what constituted
elder abuse, neglect, exploitation,
and mistreatment.
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Laws
that now regulate what constitutes
elder abuse and negligent care are
defined according to state law, with
definitions varying according to the
particular jurisdiction. State law
generally recognizes three broad categories
of elder abuse (often varying in their
specificities), including institutional
abuse, domestic abuse, and self-abuse.
Institutional
Elder Abuse
We
will focus on institutional abuse,
which is abuse suffered by residents
of a nursing home or other assisted
living facility. This can include,
but is not necessarily limited to,
nursing homes, foster homes, group
homes, board and care facilities.
Institutional abuse is committed by
anyone who abuses, neglects, exploits,
or mistreats any person to whom they
have a legal or contractual obligation
to provide with a standard of care
or protection.
Perpetrators
of Institutional Abuse
Institutional elder abuse (abuse that
occurs in nursing homes) can come
in many forms and can involve many
factors on both the part of the perpetrator
and the victim. Often times, cases
can involve a whole host of factors:
psychological, mental, physical, social,
sexual and economic on both the part
of the nursing home staff and the
victim. According to the National Center on Elder Abuse, the most common form of elder abuse is general
neglect, loosely defined as less-than-adequate
service, care, or interest in a resident.
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Physical
abuse is the second most common form
of nursing home abuse. Physical abuse
can include hitting, unreasonably
restraint, excessive use of force,
drugging and other inappropriate and
physically abusive actions against
residents. This form of abuse (along
with emotional, sexual, and financial)
is more egregious in nature because
it is a willful and intentional act
against the nursing home resident.
Unfortunately,
negligent care and elder care abuse
is difficult to detect and can be
hid from family and loved ones by
the perpetrators of these horrible
acts.
If
you or someone you know has suffered
abuse, neglect, exploitation, or mistreatment
at the hands of a nursing home, you
have legal
recourse. Most states have enacted
certain time limits from the time
that the abuse occurred, so it is
important to speak with a knowledgeable
attorney in a timely fashion.
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