You and Your Loved Ones Have Rights: Nursing Home Abuse FAQs

• What rights do residents have in an adult home?
• Are nursing homes required to have written policies and procedures, and do I have a right to view them?
• Is an adult home legally responsible for crimes committed against its residents?
• Is there a cap on damages that may be collected against Virginia adult homes (assisted living facilities)?
• Is there a time limit for filing a lawsuit against an adult home?
• Can I file a lawsuit on behalf of a family member who was injured in an adult home?
• How can I find out if a nursing home has been cited by the Department of Health?
• How can I select a safe nursing home in Virginia?
• How can a Virginia nursing home lawyer assist me?
• How do I file a complaint against a Virginia nursing home?
• What are the most common injuries suffered from nursing home falls?
• Should an adult home be restraining its residents?
• What questions are important to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?
• Who regulates adult homes?
• What is the difference between a nursing home and an adult home/assisted living facility?
• What is the difference between residential living and assisted living at an adult home?
• What are the key questions to ask when visiting a nursing or adult home?

Q: What rights do residents have in an adult home?

A: 1. Right to be encouraged and informed of appropriate means to exercise their rights as a resident and citizen.

2. Right to manage their own money.

3. Right to voice grievances and request changes in policies and services at the facility without risk of retaliation.

4. The right to have daily visitors in the facility and reasonable visits away from the adult home.

5. The right to have their personal affairs and records treated confidentially.

6. They can not be compelled to perform services for the adult home.

7. The right to be free from mental, emotional, physical, sexual and economic abuse and exploitation.

8. The right to be treated with dignity, courtesy and respect at the adult home.

Q: Are nursing homes required to have written policies and procedures, and do I have a right to view them?

A: Absolutely. All nursing homes licensed in Virginia are required to have written policies and procedures for providing care to its residents. The staff is required to be familiar with the policies and procedures and to comply with them. Unfortunately, many nursing homes fail to do so and the results can be tragic. You have a right to review them and you should ask for a copy of the procedures. Do not tolerate care below those levels. Frequently after an injury occurs the facility denies that they are liable for providing care that does not even comply with its own policies and procedures. The Silverman Law Firm LC has successfully compelled nursing homes to provide this information in litigation. Contact us by email or call us at (804) 325-4992 to discuss your legal rights.

Q: Is an adult home legally responsible for crimes committed against its residents?

A: Tragically residents of adult homes have been victims of criminal acts including physical, emotional, and even sexual abuse by the employees of the adult home who are entrusted with their protection. To prevent dangerous persons from becoming employed at adult homes, they are required to conduct criminal background checks on all of their employees. This is especially important because many residents of adult homes are physically and mentally vulnerable to abuse. If the adult home fails to conduct a criminal background check and a resident is victimized by an employee with a criminal record the facility may be legally liable. Additionally, if the adult home has reason to believe that its employees are dangerous and the facility does not take steps to protect its residents it may be liable. For added protection the adult home is also required to check at least two references for every employee. The bottom line is that the adult home must make reasonable attempts to protect its vulnerable residents.

If you have reason to believe a loved one may have been a victim of abuse or at risk of abuse at a nursing home, you should contact authorities immediately. Adult protective services should respond with haste. You certainly can contact the police or the local commonwealth's attorney. Once the resident is safe, we can investigate whether a civil claim can be filed to obtain financial compensation from the adult home.

Q: Is there a cap on damages that may be collected against Virginia adult homes (assisted living facilities)?

A: The Virginia Supreme Court held in the decision of Commercial Distributors v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990) that assisted living facilities are not subject to Virginia’s medical malpractice cap. Therefore, under current interpretation of the law there is no cap on compensatory damages. Alternatively, the liability of nursing homes in Virginia is limited by the medical malpractice cap which exceeds $2,000,000.

Punitive damages may be obtained against a Virginia adult home. Punitive damage claims in Virginia are limited to $350,000. The cap on punitive damages is not limited to adult home cases. The Virginia punitive damages cap applies to all defendants including drunk drivers, manufacturers, doctors, etc.

Q: Is there a time limit for filing a lawsuit against an adult home?

A:  Generally, a lawsuit against an adult home (assisted living facility) must be filed within two years of the resident's injury or death. However there are exceptions to this rule. Under some circumstances the period may be lengthened if the resident is legally incompetent. If the facility is owned by a government agency there are specific requirements for filing a notice of claim and in some cases the notice of claim must be filed within 6 months of the resident's injury or death. Therefore, it is important that you contact an attorney as soon as possible. Many attorneys will not accept a case if you are close to a deadline.

Please contact Josh Silverman by email or call him at (804) 325-4992 to see if the Silverman Law Firm LC can help.

Q: Can I file a lawsuit on behalf of a family member who was injured in an adult home?

A: If your family member who was injured is competent, the lawsuit will normally be filed in his or her own name. However, if you have a durable power of attorney or are the legally appointed guardian then in most cases you can file the lawsuit on his or her behalf. Silverman Law Firm can assist you in preparing a guardianship petition when it is necessary to file a claim on behalf of an injured or abused person who is not legally competent.

Q: How can I find out if a nursing home has been cited by the Department of Health?

A: The Virginia Department of Health conducts regular unannounced inspections of all licensed nursing homes in Virginia. The results of the inspections are available for free at Medicare.gov. At the Medicare website, nursing homes are ranked from one to five stars. You can even enter your zip code and find the rankings of all nursing homes in your area. If you need help interpreting the search results, call us and we will be happy to review them with you at no charge.

Q: How can I select a safe nursing home in Virginia?

A: Selecting a nursing home for a family member is never easy. Fortunately, new information about nursing homes recently has become available on the Internet. Medicare provides a useful 59 page guide for choosing a nursing home that can be viewed online.

In Virginia, you can contact the Center for Quality Healthcare and ask for copies of surveys and copies of prior complaints made against the nursing home. The Center for Quality Healthcare may charge a modest fee for copying. Under the Virginia Freedom of Information Act, they must provide these documents within five business days.

Another valuable resource is the Nursing Home Compare website operated by Medicare. The website rates nursing homes from 1-5 stars and you can search by the name of a particular facility or a geographic area.

There are professional healthcare consults who can assist you in locating an appropriate nursing home. Some will charge a fee for their services. Others are paid by the nursing homes and assisted living facilities much like a real estate agent. Unfortunately it is an unregulated industry so I can not recommend any particular company. For more information about researching nursing homes visit our Nursing Home Abuse and Neglect practice page.

Q: How can a Virginia nursing home lawyer assist me?

A: The first thing that Josh Silverman will do is listen to you during a consultation at our Richmond, VA, injury law office. He wants to learn as much as possible about your loved one and what happened to him or her. He will need to know about his or her health, work history, and family. He will listen to you to learn what happened at the adult home or nursing home.

Equally important, Josh will take the time to answer your questions. You may want to learn more about his background and experiences. While he can not guarantee specific results, he will discuss your legal options and offer his best prediction on how your case will be resolved. If he believes that he can assist you and you choose to hire the Silverman Law Firm LC, we will each sign a retainer agreement giving the Silverman Law Firm authority to represent you and setting forth our legal fee. For more information about fees, visit the fee information page on the website.

Once a retainer agreement is signed Josh can begin working for you. He will request copies of all the relevant medical records and the records of the nursing home or adult home. In most cases he will obtain via the Virginia Freedom of Information Act (FOIA) all recent reports of abuse and neglect at the adult home or nursing home. His legal team will also search court records to see if there have been similar cases against the adult home or nursing home. If appropriate, we will interview former employees of the facility to get a better picture of the adult home or nursing home. Josh has found that former employees often paint a vastly different picture of the adult home or nursing home than what is reported to the government investigators and documented in the patient records. After conducting an initial investigation, Josh will share with you his our recommendations. In many cases, Josh will recommend filing a lawsuit. Only upon filing a lawsuit will we have an opportunity to review internal documents and to depose the staff and owners of the adult home or nursing home. We also believe the best settlements are obtained after filing suit. However, some cases can be settled without filing a lawsuit. Usually the trial is scheduled 10 months to a year after filing suit. For more information about legal remedies for victims of abuse and neglect at nursing homes and assisted living facilities visit our Elder Abuse and Neglect practice page.

Q: How do I file a complaint against a Virginia nursing home?

A: Virginia nursing homes are regulated by the Virginia Department of Health. You can file a complaint by calling (800) 955-1819. For more information, visit the website for the complaint unit.

The Virginia Department of Health has the authority to conduct random unannounced inspections of the nursing home. The inspectors can review patient records, speak with patients, and interview staff members. The results of their inspections can lead to improved care in the nursing home. If deficiencies are found the nursing home can be sanctioned and required to institute a plan of correction to prevent similar errors from happening again. If there is a pattern of regulatory violations the facility can be sanctioned by losing the right to accept Medicare and Medicaid patients. The ultimate goal is to improve the quality of care.

As part of a civil case, I routinely request copies of complaint investigations and surveys from the Virginia Department of Health. These documents shed light on how the facility operates, how they go about documenting care, and whether the abuse and neglect suffered by my client was isolated or part of a pattern. If it was part of a pattern, we may seek punitive damages to punish the nursing home and to deter others from proving poor care.

Q: What are the most common injuries suffered from nursing home falls?

A: Falls in nursing homes, hospitals, and assisted living facilities are frequent causes of hip fractures, broken wrists, and head injuries. The elderly are particularly prone to head injuries because they often do not have the upper body strength to catch themselves as they fall. Both head injuries and hip fractures are often fatal in the elderly.

Head injuries can cause an immediate loss of life due to brain damage. Hip fractures are more complicated. While they are unlikely to be an immediate cause of death a high percentage of patients who suffer a hip fracture will not survive six months. The high 6 month mortality rate is due to the fact that the elderly often lose their ability to walk after suffering a hip fracture. That puts them at heightened risk for developing pressure ulcers, incontinence, and life threatening infections.

Q: Should an adult home be restraining its residents?

A: It is illegal for certain adult homes to use physical or chemical restraints to control residents except in emergency situations. Restraints are extremely dangerous to residents. In addition to severe psychological effects of restraints, the use of restraints has a high incidence of severe injuries and even death.

A physical restraint usually refers to straps used to tie a residents arms and legs to a bed. However, bed rails can also be considered a restraint because many residents are unable to get around a bed rail.

Chemical restraints are medications that have the effect of overly sedating a resident. Examples include Ativan, Haldol and other psychiatric medications.

Q: What questions are important to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?

A: It is important that your attorney has a working knowledge of the rules and regulations of adult homes. These rules set forth minimal standards. An adult home may be held liable for monetary damages for violating these standards. These standards include staff qualifications, quality of food, emergency procedures, social activities for the residents, and quality living conditions. Additionally, there are statutes and court rulings that may affect your rights. It is essential that your attorney be familiar with these laws and court rulings.

Adult homes are also required to comply with the local building codes. Unfortunately many facilities are in poor condition. In some cases, adult homes have ignored repeated citations for building code violations like failure to provide sufficient heat and ventilation, safe entrances, and secure windows. Your attorney should be familiar with these regulations and how they apply to adult homes.

Josh Silverman represents victims of abuse and neglect at Virginia adult homes. He has represented residents who were injured after falling out of unsecured windows, suffered hypothermia due to insufficient heat, sustained fractures due to preventable falls, and died due to medication errors amongst other serious cases of neglect. Each of these cases were preventable tragedies. 

Q: Who regulates adult homes?

A: Adult homes (assisted living facilities) are regulated by the Virginia Department of Social Services. Unlike nursing homes, adult homes are not subject to the strict federal regulations. To protect against elder abuse and neglect, the Virginia Department of Social Services conducts random inspections of assisted living facilities. However, in many cases abuse and neglect goes unreported and government attention to these adult homes is widely scattered. Attorneys investigating cases of abuse and neglect at adult homes must have a working knowledge of the regulations of the Virginia Department of Social Services. Facilities that violate the regulations may be liable for injuries or death. 

Q: What is the difference between a nursing home and an adult home/assisted living facility?

A: An adult home is by law a facility intended to provide minimal to moderate assistance with daily activities like bathing, dressing, and use of a bathroom. The adult home may provide medication if there are qualified persons on staff. They commonly provide both long term and short term (respite) care. Adult homes are regulated by the Virginia Department of Social Services. Additionally they must comply with the local building codes. The building inspectors office may conduct inspections of the facility. Adult homes are generally funded by grants from the local government or through private funds. A nursing home provides healthcare to its patients.

Nursing homes are subject to much stricter federal and state regulations and must be staffed with nurses. The Virginia Department of Health is responsible for ensuring that nursing homes comply with these regulations. They are subject to both announced and unannounced inspections, however, the inspectors are not able to catch all violations of health and safety regulations and unfortunately many cases of elder abuse and neglect goes unreported. 

Q: What is the difference between residential living and assisted living at an adult home?

A: Both residential and assisted living facilities are regulated by the Virginia Department of Social Services and must meet certain standards. Residential living is for adults who require only minimal assistance with activities of daily living. Assisted living facilities are for residents who require a moderate or more intense level of assistance with activities including medication, bathing, eating, and dressing. An assisted living facility must provide staff with specialized training. The facility may be liable if it fails to provide sufficient numbers of trained staff members to properly care for its residents and to prevent serious injuries. Regardless of whether your loved one is receiving residential living or assisted living services the facility has a duty to use reasonable care for the safety of its residents. 

Q: What are the key questions to ask when visiting a nursing or adult home?

A: What is the staff to resident ratio on each shift?

• Does the facility provide the religious, cultural and social programs that will interest the resident?
• What fees does the facility charge? Upon request the facility should provide a written fee schedule.
• What type of security does the adult home or nursing home have in place to keep dangerous people out and to keep residents from wandering away?
• Does the facility have arrangements with local hospitals and doctors for emergencies? For nursing homes, is it accredited by the Joint Commission on the Accreditation of Healthcare Organizations Medicare provides a checklist with these and other important questions that you should consider in selecting a nursing home.

Once you have selected a facility, you should remain diligent. Visit your loved ones often. Talk to the staff. Let them know that you are concerned and you want to remain informed their care. You should not be shy about thanking them for providing quality care and likewise complaining about anything less than quality care. You should try to visit the facility at different times of the day to check up on the care your loved ones receive during different nursing shift.

To learn more about these and other questions regarding your case, contact Silverman Law Firm LC today.