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Seasoned courtroom lawyers.
We’ve handled matters in 30 states, for 30 years.
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Respected
by our peers.
Our firm has the highest possible Martindale-Hubbell peer review rating, an AV®.
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Top Credentials.
Our lawyers hail from
top law schools like
Harvard, Emory, and the
University of Georgia.
They have published three legal treatises, written numerous articles, and given more than 100 legal seminars.
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Professional Liability |
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Nursing Home Litigation
Because of the length of this document, we present it in PDF format. Click here to download the entire 49-page, printable document.
The document introduction appears below.
It was once thought that nursing home claims were low risk and low exposure. The life expectancy of the typical nursing home resident is not very long; therefore, it was thought that the pecuniary value of the case was lower. While that logic prevails in some cases, some juries are persuaded that the time remaining to the resident and her loved ones is important and the loss of those last few months or years may have substantial value. Couple this theory with evidence of abuse and neglect and the result can be explosive. While most of the “big dollar” verdicts have occurred in other states, Georgia juries have joined the fray.
There is legislation providing victims of nursing home abuse with a private cause of action. See Fla. Stat. Ann. § 381.026 (enacted in 1976); Texas Liability Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann., art. 4590i (enacted in 1977); See “The Georgia Bill of Rights for Residents of Long Term Care Facilities,” O.C.G.A. § 31-8-100, et seq. (enacted in 1981); See also Cal. Civ. Code § 3333.2(b) (enacted in 1997 to allow for enhanced remedies to nursing home residents where there is clear evidence of “physical abuse, reckless neglect or fiduciary abuse”).
A recent survey of payments made by a national insurer illustrates a growth in both the incidence of elder abuse and the probability of plaintiff recovery. Between 1992 and 1997, the number of nursing home abuse claims doubled. Moreover, in 1992 only one claim alleging elder abuse resulted in payment of $500,000, while by 1997 thirty-seven payments exceeded $500,000 and seven exceeded the $1 million mark.
Also emerging is the potential viability of class action lawsuits within the elder abuse context. In a recent decision with Georgia ties, the Colorado Court of Appeals permitted a class action suit seeking the reimbursement of funds paid by plaintiffs and by Medicare on behalf of plaintiffs, to go forward against a care facility managed by an Atlanta based parent corporation, Mariner Post-Acute Network. While the pursuit of tort remedies in favor of a class of nursing home residents faces various obstacles, actions brought with an eye toward generalized failings (as opposed to individualized injury) have been proposed as a promising horizon for elder abuse litigation. It is argued that class action elder abuse cases are uniquely qualified as “impact litigation.” Because of the character of the injuries suffered, the typically vulnerable and powerless quality of the victims of elder abuse, and the systemic quality of abuse suffered, class action suits are said to be an especially appropriate means of protecting rights and interests shared among a group of nursing home residents. In fact, class action suits brought on behalf of victims of elder abuse were the primary impetus behind the enactment of the Federal Nursing Home Reform Act.
The changed atmosphere in the courtroom is accompanied by significantly more expansive governmental involvement and a heightened public awareness.
“Public and congressional concern about staffing has been heightened by the Health Care Financing Administration’s (HCFA’s) comprehensive 1998 nursing home Report to Congress that identified a range of serious problems including malnutrition, dehydration, pressure sores, abuse and neglect, as well as similar reports from the U.S. General Accounting Office, and the Office of the Inspector General. . . . In addition, there has been a heightened public concern with the issue due to the continuous flow of newspaper articles and television news reports highlighting inadequate care and abuse in nursing homes.”
The graying of the “baby boomer” generation may explain part of the increased awareness. This segment of the population is demographically significant and tantalizing to marketers and those who would seek to profit by affording housing and care to the elderly.
The explosion of information and the ease of access to it through the Internet have added to the interest and complexity of nursing home cases. There is an abundance of information made available to consumers so they may make informed decisions regarding the selection of a long-term care facility for themselves or a loved one. This same information is, however, available as a resource in litigation. For example, The Atlanta Journal recently compiled an on-line listing of Georgia nursing homes. The data base includes information about each elder care facility in the state. Information is provided about resident spending, staffing, the resident population, inspections, deficiencies and resident injuries.
Georgia adopted a “Bill of Rights” for nursing home residents in 1981, 6 years before the federal “Resident’s Bill of Rights” adopted as a part of the Nursing Home Reform Act. A private cause of action was expressly created. The statute specifically excuses any obligation to “exhaust” administrative remedies. In Thurman v. Pruitt Corp., the Georgia Court of Appeals recognized this private right of action for violation of the Georgia Bill of Rights of Long Term Care Facilities. In Brogdon v. National Healthcare Corp., a federal judge held that claims under Georgia’s Bill of Rights for Residents of Long-Term Care Facilities survive the death of the resident as do breach of contract claims. Georgia has a similar statutory adoption of rights for residents of “Personal Care Homes.” That statute also creates a private right of action.
Email
404-239-1150
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Mentally ill or
disabled people
are some of the
most vulnerable victims
of crime and professional negligence. The legal system can be overwhelming for these victims and their families because it is often difficult, if not impossible, for these victims to talk about or appreciate the harm that they have suffered. Over the past decade, attorney Mary Donne Peters has represented mentally ill or challenged individuals and their families around the United States. She has helped her clients obtain settlements and judgments of approximately $20-million for harm arising from sexual assault, abuse, neglect and professional negligence.
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