elderly-careRecognition of the nation’s growing population of elderly persons and the associated problems with caring for these individuals has been a legislative concern for decades, perhaps most notably initiating with the 1961 establishment of the Senate Special Committee on Aging. Four years later, came the creation of Medicare and Medicaid, wherein although funding to assist the elderly  became available, there appeared to have been a lack of concurrent legislation addressing standards of care for the nursing home facilities providing residence to our nation’s elderly. Eventually, over two decades later, and in part over growing concerns as to how federal resources were being directed, the issue was addressed by the Reagan Administration, with the enactment of the Nursing Home Reform Act of 1987.

With higher expectations regarding standards of care in place for nursing home facilities and the staff in which they employ, so ensued to the increase in litigation over matters involving injury to the elderly residents of these facilities. The complexities involved in discerning between local, state, and federal legislation, as well as between intentional and unintentional acts of negligence has necessarily led to a growing field of legal experts employed to overcome key evidentiary issues. Consequently, difficulties often arise in nursing home negligence actions when litigants are faced with the dilemma in determining who did what wrong pursuant to which standard or regulation. Specific evidentiary issues arise in circumstances where injuries are sustained in what may appear to be an accident, but what might actually have been the result of abuse of neglect.

Further complications arise when determining whether fault lies in a particular staff member, the facility itself, or both; and in some cases, a nursing home facility may be held strictly liability, regardless of whether an act or omission is deemed to be  intentionally or unintentional. Commonly, through presentation of expert testimony, nursing homes are found to be at fault for reasons such as employment of underqualified workers, failure to supply and adequate number of staff members at a given time, or overworking staff members such that violations of labor laws exist.  In other scenarios, failure to have appropriate or adequate supplies or equipment are found to be the resulting cause of incidents involving accidents, injuries, abuse, and neglect in nursing homes. Yet, in other circumstances accidents and abuse may occur in nursing homes despite a facilities’ compliance with all regulations. As such, issues regarding fault and liability might be more efficiently addressed through the use of nursing home experts, who are familiar with all aspects of liability whether related to standards or regulations concerning medical, staffing, or administration, and who are therefore able to distinguish between the absence and presence of nursing home liability.

As the population of individuals over the age of 65 increases, so does the availability of nursing homes and elder care facilities that provide residency and care to these individuals. With more and more elders being placed in such facilities, many of whom are vulnerable, or unable to defend themselves, concerns regarding nursing home accidents and liability, and more importantly, elder abuse, are undoubtedly on the rise. As reported by the National Center on Elder abuse, “In the United States, the 2010 Census recorded the greatest number and proportion of people age 65 and older in all of decennial census history: 40.3 million, or 13% of the total population. By 2050, people age 65 and older are expected to comprise 20% of the total U.S. population.” As our nation’s elder population continues to increase, so does the occurrence of litigation that both parallels legislative and regulatory action, as well as that which attempts address the absence of such intervention. With so much at risk for our nation’s beloved elders, the expertise provided from nursing home experts are sure to provide continued guidance during such litigated matters for years to come.

By: Alicia McKnight, J.D.