Nursing Home Injury Claim: Falls, Bedsores and Neglect

Nursing homes that accept Medicare or Medicaid, which is nearly all of them, are governed by federal regulations that require a comprehensive assessment of each resident, a care plan based on it, and the staff and services to carry it out. The regulations address fall prevention, pressure injury prevention and treatment, nutrition and hydration, medication management, infection control, supervision, and freedom from abuse and neglect. State licensing law adds its own requirements, often including minimum staffing ratios.

A claim is built by comparing what the care plan and regulations required with what the chart shows was done. A resident assessed as a fall risk should have had specified interventions: a low bed, alarms, assistance with transfers, scheduled toileting. A resident at risk for pressure injuries should have been turned on a schedule, with skin checks and pressure-relieving surfaces. When those interventions are documented as planned and not documented as performed, or when the documentation is identical every shift in a way that suggests it was not real, the claim is substantially made.

Nursing home claims are not medical malpractice claims in most states, though some states treat them that way, with the pre-suit requirements and expert certifications that malpractice law imposes. Which category applies affects the deadline and the procedure, and it is one of the first things an attorney determines.

Falls are the most common injury. The facility's defense is that falls happen to frail people and cannot be prevented; the claim's answer is the fall risk assessment, the care plan interventions, and whether they were in place at the time of the fall. Unwitnessed falls, falls during transfers by a single aide when two were required, and repeated falls without a revised care plan are the typical patterns. A hip fracture in a resident over 80 carries a high risk of death within a year, so a fall claim is often also a wrongful death claim.

Pressure injuries, also called bedsores, develop when a resident is not repositioned, kept clean and dry, and adequately nourished. A stage 3 or stage 4 injury, with tissue loss to muscle or bone, almost never develops with proper care, and federal regulations treat an avoidable pressure injury as a deficiency in itself. The chart's turning records, skin assessments, wound measurements and dietary notes are the evidence, and their gaps are the claim.

Dehydration and malnutrition, medication errors, untreated infections, elopement, and injuries inflicted by other residents or by staff round out the usual claims. Each is tied to a specific regulatory requirement and to records the facility is required to keep. The facility's own incident reports, which it must prepare for serious events, are often the most candid account and are obtained in litigation.

Suppose your mother, 84, was admitted to a nursing home after a stroke, assessed as a high fall risk and as needing two-person assistance for transfers. Six weeks later she was found on the floor of her room with a fractured hip. She had surgery, developed pneumonia in the hospital, and died three weeks after the fall.

Her chart showed the two-person transfer requirement in the care plan. The staffing records for the shift showed one aide for twenty-two residents on that wing. The incident report, obtained after suit was filed, recorded that the aide had attempted the transfer alone because no one else was available. The state's most recent inspection, public on the federal nursing home comparison site, had cited the facility for insufficient staffing and for failure to follow care plans.

The claim was brought as a wrongful death claim by the estate, alleging negligence in staffing and in failing to follow the care plan. The facility raised the arbitration agreement your brother had signed at admission; the court found he had no authority to bind your mother and the claim proceeded. It resolved at mediation for the medical expenses, funeral expenses and the statutory damages for the loss of a parent. All figures are hypothetical; the records pattern is the usual one.

The resident often cannot report what is happening. The family's observations and the records they request are the start of the claim.

• Photograph injuries, pressure wounds, the resident's condition and the room on every visit, with dates.
• Request the complete chart in writing; the resident or their legal representative is entitled to it, and the facility must provide it within a set period.
• Keep a log of visits: who was on duty, how long call lights went unanswered, what the resident said, what staff said.
• Report the injury to the state's long-term care ombudsman and the state health department, which investigates complaints and whose findings are public.
• Get the resident seen by an outside physician, and a hospital for a serious injury, so that an independent record exists.
• Find the admission paperwork and check for an arbitration agreement and who signed it.
• Do not sign anything the facility presents after the injury, and do not accept a facility's internal explanation as the final account.

Whether a nursing home claim is treated as ordinary negligence or as medical malpractice is a state question, and it matters. In states that treat it as malpractice, a pre-suit notice, an expert affidavit and a shorter deadline may apply, and non-economic damages may be capped. Some states have specific nursing home resident rights statutes, including Florida, Illinois and California, that create their own causes of action, with their own remedies and sometimes attorney's fees.

Deadlines vary: the general injury statute, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina, but a malpractice characterization can shorten it, and wrongful death claims have their own deadline running from the death. Arbitration agreement enforcement differs by state and by who signed; many courts have refused to enforce agreements signed by a family member without a power of attorney, and federal rules restrict facilities from requiring arbitration as a condition of admission.

Caps on non-economic damages in malpractice claims apply in some states if the nursing home claim falls under malpractice law. Punitive damages for conscious disregard of residents' safety are available in many states and are a real factor in understaffing cases. Wrongful death beneficiaries and damages are defined by each state's statute, and in some states the damages available for the death of an elderly person with no dependents are limited, which affects what the claim is worth.

Chronic understaffing is the common cause of nursing home injury, and it is unusually well documented. Facilities report their daily staffing to the federal government through payroll-based journal data, which is public and shows the hours of nursing care per resident per day. A facility's rating on the federal comparison site includes a staffing component, and a low rating is evidence the facility knew its staffing was inadequate.

State health departments inspect nursing homes roughly annually and investigate complaints, and the resulting reports, which cite specific deficiencies and describe the incidents behind them, are public. A pattern of citations for the same failures that injured the resident is evidence of notice and of disregard, which supports a punitive damages claim in many states.

Ownership structures matter too. Many facilities are operated by chains through layered entities and management companies, and the question of who made the staffing decisions and who holds the insurance is part of the claim. An attorney identifies the operating entity, the management company and the owner, and the insurance each carries.

A nursing home claim is a records case: the care plan, the chart, the staffing data and the inspection history either show the failure or they do not, and obtaining and reading them is the work. The questions to answer early are whether the records have been requested, whether an arbitration agreement exists and who signed it, and whether the state treats the claim as malpractice with its own deadline. Attorneys who handle these claims work on contingency.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If a family member was injured or died in a nursing home and you suspect neglect, you can request a free claim review.

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