Watching a loved one age is hard, though deciding to put them in a nursing home is even harder. You may not be able to provide them with the round-the-clock care they need, and you hope that when you put them into an assisted living facility, they will be well taken care of emotional distress
While there are plenty of nursing homes that provide top-quality care to their elderly residents, there are unfortunately many more that do not abide by this practice. Nursing home abuse is a huge problem plaguing these facilities. To protect an aging loved one in such a facility, it is imperative to keep a keen eye out for their care to advocate for their rights.
If you need to file a lawsuit, there are some key things to know, particularly how to prove emotional distress to ensure full and fair compensation. Read on to learn why nursing home abuse happens, types of abuse, and what can be done to prove your loved one suffered emotional harm.
Understanding Emotional Distress
The legal term of emotional distress is what is used to describe the mental pain and suffering or anguish that has arisen from the negligent or intentional actions of another person. As such, it is considered an injury that can be awarded compensation in a personal injury lawsuit.
Emotional distress can include a variety of mental conditions, from anxiety to depression. However, there are challenges in proving it. It will require establishing that nursing home abuse occurred as well as proving negligence and liability.
Why Does Nursing Home Abuse Happen?
There isn’t one single reason why nursing home abuse occurs, though several factors may contribute to this growing epidemic in elderly care facilities.
Staffing Issues
Sometimes, it’s not the behavior of any one particular member of the nursing home staff. The trouble may be that there may not be adequate staffing for the facility, making it hard for them to provide the care your loved one needs.
Staffing shortages are incredibly common in this sector of healthcare, largely because of burnout and lack of qualified professionals to fill vacant positions. When there is a low ratio of caregivers to residents, it is easier for the staff to miss major issues. Most of the time, this is the reason behind subpar care, though there may be certain staff members who take out their frustrations on nursing home residents, either physically or verbally.
Lack of Training and Motivation
Along with having difficulties getting enough staff to serve the residents at the facility, many of the ones that are present either lack training or don’t have enough experience. Both of these factors mean that they are ill-equipped to perform their job duties with the right level of care. A lack of training impacts every resident’s quality of life, and by failing to provide the support agreed upon at the time of moving into the facility, the nursing home is committing abuse.
Similarly, even those who have the training may not be inclined to give their best efforts when serving the needs of patients. Most nursing homes are privately run businesses, and they do ot have standard pay rates for their staff.
Some staff may be paid more than others, though the biggest issue is that most of them feel undervalued for the efforts they put in, especially when they are short-staffed. Given this consideration, they may consider their pay too low and aren’t motivated to give the effort it takes to provide the right level of care.
Abusive Caregivers
Given that the sector of assisted living has one of the highest rates of turnover, when a nursing home does find trained personnel, they may wind up with a caregiver who commits abuse. These people may have mental health issues of their own or be burnt out from the stress of the job. Still, it’s no excuse to harm patients who are counting on their care. If a nursing home does not take the right steps to remove an abusive caregiver, it could cause legal issues.
Poor Nursing Home Management
Not all nursing homes are bad places, though the ones that are have given the good ones a bad reputation. Some are run properly while others do not have the leadership, management, and supervision in place to do things right. When strong management is not in place, there is a lack of accountability along with a lack of consequences for neglect and abuse.
Additionally, even when cases of nursing home abuse are reported, they may fall through the cracks and never be investigated or punished by authorities. This allows these travesties to continue, causing more harm to this vulnerable set of the population.
How Do You Know If There Is an Issue with Nursing Home Abuse at Your Loved One’s Facility?
Before you can ever prove that your loved one is experiencing emotional distress as a result of the care they are receiving, you must determine if there is nursing home abuse. Family members must be vigilant and take an active role in the care of their relatives to ensure that a nursing home is providing the care it has promised.
Nursing home abuse comes in many forms, and it isn’t always physical. Here are the common ways that elderly patients are abused in assisted living facilities and the signs that should make you take action:
Physical Abuse
One of the most common forms of nursing home abuse is physical, and the hallmarks are usually more obvious. Your loved one may have unexplained injuries such as cuts, bruises, burns, or fractures.
While it is certainly possible that they may have been injured in a non-malicious way, be cautious when the caregiver’s account doesn’t match the injury. If your family member often flinches when touched or has been sent to the emergency room frequently for these types of injuries, you should investigate the matter further, as these signs point to physical abuse.
Sexual Abuse
Another horrible violation that is almost unspeakable is sexual abuse committed by the caregivers in charge of your relative. Pay attention if your loved one has a sexually transmitted infection that they had no history of before, or bruises and bleeding in the genital region. Those who have suffered sexual abuse tend to become withdrawn and fearful. It is important to have your loved one evaluated by a professional to determine if they are the victim of such abuse.
Emotional Abuse
Some elderly patients endure abuse without being inappropriately touched or physically harmed. Emotional abuse can cause just as much harm, often resulting in personality changes, sudden mood swings, or withdrawal from activities they once loved. It is common for victims of emotional abuse in nursing homes to avoid certain staff members and exhibit signs of fearfulness, largely due to threats.
Nursing Home Neglect
You may be paying good money or have a strong long-term care policy that will cover the care of your loved one. When they appear malnourished, dehydrated, have bedsores, are unkempt, or their living conditions are filthy, these are clear signs of nursing home neglect.
Financial Abuse
Unscrupulous nursing home staff may prey on their patients by taking valuables or making withdrawals from your relative’s bank accounts. If you notice any unusual spending or unauthorized transactions, they may be exploiting your family member.
Many other signs can point to nursing home abuse, which is why it is critical to stay involved in their care. If you have spotted any of these signs, you should know the steps to take to hold those responsible accountable for their deplorable actions.
Proving Emotional Distress and Nursing Home Abuse
If you suspect that nursing home abuse is going on, you must act quickly for the sake of your loved one. It is incredibly difficult to witness someone you love suffering when they should be enjoying their golden years and cared for properly.
These steps will help you take the right action and show a strong case of emotional distress that deserves compensation:
Get Documentation
It’s one thing to suspect abuse, but another thing to prove it. This requires having evidence that supports your claim. In the event of physical abuse, take photos of these injuries and make sure they are clear and time-stamped so there is no dispute about when they occurred. If neglect is a factor, take photos and videos of the unsanitary conditions your family member has been subjected to while in the nursing home’s care.
You should also document your findings in a journal, dating each entry for any incidents, conversations you’ve had with staff and the names of those staff members, and any changes you’ve noticed in your loved one’s emotional state. Keeping thorough documentation can help show that there’s a pattern of harm through direct abuse or neglect that has contributed to their emotional distress.
Additionally, many nursing homes are equipped with surveillance in common areas, which can be revealing. Working with an attorney can help you obtain video footage that provides irrefutable proof of this abuse.
Get Copies of All Medical Records
Obtaining your loved one’s medical records can show different issues for which they have been treated. Look for treatment of dehydration, malnutrition, repeated instances of falls, and other clues that show a pattern of neglect.
Talk to Witnesses
Other residents and their family members may have seen something themselves. Talk to them and see if they have any potential information, and ask if they can provide a statement that you can use to support your case.
Examine All Financial Transactions
Your loved one could suffer emotional distress when they discover that the money they have saved over the years has been stolen from right under their nose. Financial exploitation may be present, either independently or in conjunction with other forms of nursing home abuse. Keep copies of all bank statements and other relevant records to submit as evidence if fraudulent activity has been occurring.
Report the Abuse to Authorities
Another way to document that your family member has endured abuse and emotional distress at the hands of their assisted living facility is to report it to the proper authorities. Notify your state’s regulatory agency and make an official complaint to prompt an investigation into the matter.
This can be done through the Department of Health or Adult Protective Services. Keep copies of all interactions with these entities. If you fear an immediate danger to your loved one’s safety, never hesitate to call 911.
Don’t Wait to Take Legal Action
When nursing home abuse is going on, it is imperative to take action right away, as physical forms of evidence can fade, making it more challenging to prove. Similarly, delaying these actions can make it difficult to prove nursing home negligence and the emotional distress it has caused. You can always turn to an attorney who represents nursing home abuse victims to determine the best course of action.
What Is Required to Establish Liability for Emotional Distress in Nursing Homes?
Nursing home abuse often causes emotional distress, though before you can seek damages for these harms, you need to prove liability, which requires meeting the elements of negligence.
There are four components to negligence that all must be met. It can’t be just one or two of these elements. The first is a duty of care, which needs to establish that the nursing home had this particular duty. When a person is placed in the care of one of these facilities, the facility in question has a legal obligation to ensure the safety of that resident. The nursing home must provide a safe environment, proper medical care, and protection from harm.
Next, you will need to show that the nursing home failed to uphold this duty of care, known as a breach. When abuse occurs, this is a direct breach of the duty of care. The breach of legal duty needs to have directly resulted in the harm that the resident suffered, which includes emotional distress, among many other things.
Finally, the emotional distress your loved one suffered needs to be linked to damages, which may include medical expenses related to psychological treatments, pain and suffering, and loss of enjoyment of life.
How Much Can Be Awarded in Compensation for Emotional Distress?
Filing a lawsuit for a loved one who has endured emotional distress often brings up questions, such as how much compensation can be sought. Unlike economic damages, where you can pinpoint the exact dollar amount through bills and receipts, emotional distress is a type of non-economic damage that is considered intangible. The other proof you present can help your nursing home abuse attorney arrive at a fair settlement offer.
In some states, caps are imposed on damages for emotional distress, while in others, there are limits on pain and suffering damages, which may potentially affect the amount recovered for emotional distress. Caps are essentially maximum limits on the amount that can be awarded for certain types of damages. With these caps, it can impact how much can be recovered, even if evidence exists to show the level of emotional distress suffered is severe.
In the state of Alabama, there is no statutory cap placed on emotional distress damages in these types of cases. This amount will not be limited by the law, though it will depend on the unique factors of your claim. It is important to note that there are no caps placed on non-economic damages, including emotional distress as well as pain and suffering, along with a variety of other intangible losses.
Additionally, Alabama tends to consider emotional distress as a part of pain and suffering. However, while there is no cap in this state, filing a claim for intentional infliction of emotional distress requires proof that the defendant named in the lawsuit conducted themselves extremely and outrageously, causing this severe emotional anguish.
Understanding Intentional Infliction of Emotional Distress
Many lawsuits, like those involving car accidents, hinge on negligent infliction of emotional distress. For nursing home abuse cases, intentional infliction of emotional distress may be a factor even if they were not physically abused or neglected.
An intentional infliction of emotional distress requires showing that the defendant engaged in conduct deemed as extreme and outrageous that was directed at your relative. These actions must have been intentional or reckless, and your loved one suffered serious emotional distress from this conduct.
Extreme and Outrageous Conduct
To meet the requirement that a person has conducted themselves extremely and outrageously, the defendant must have behaved in a certain way. Whether they threatened your relative, stole from them, or committed other heinous acts, a judge or jury may need to decide if this behavior was beyond the pale.
Intentional or Reckless
While it may be hard to deny that the damaging behavior that caused your loved one’s emotional distress was intentional, it can still be a challenge. Your attorney will need to show that the defendant specifically had the intention of causing emotional distress or should have reasonably known that by their actions, this would be the result.
Severe Emotional Distress
Lastly, the injured party needs to show that due to the other party’s intentional actions, they have suffered this severe emotional distress. The level and severity of what they have suffered is beyond what a normal person would have been expected to endure. It also considers the duration of suffering, intensity, and whether any physical symptoms manifested from the defendant’s harmful actions.
Statute of Limitations for Emotional Distress Claims in Alabama
In Alabama, as in all other states, there are time limits for filing these types of claims. Whether you have a case of an intentional infliction of emotional distress, or even one where negligence may be a factor, then both types of lawsuits will require you to file within two years of the date this distressing event occurred.
Since nursing home abuse cases may have documented evidence of multiple instances over time, it may be harder to identify exactly when this began. Complexities like these should be handled with qualified legal representation to ensure proper compilation of evidence as well as filing the lawsuit in accordance with the statute of limitations.
What happens if you don’t make the deadline? In most personal injury cases, including nursing home abuse that results in emotional distress, it would usually bar you from seeking compensation. Certain exceptions or extensions may apply, though they are only permitted in very rare circumstances, particularly if the emotional distress was not evident right away, known as discovery.
What Can You Do to Prevent the Abuse of a Loved One in a Nursing Home Facility?
If you have recently placed your loved one in this type of assisted living care, it is vital to take a proactive approach to ensure their safety, security, and health. While nursing home abuse does occur frequently in many forms, leading to emotional distress, not every facility or caretaker will cause harm.
The key is in preventing it from happening in the first place, which can be done by remaining actively involved in their lives even after moving them to the nursing home. As a precautionary measure, make sure you know the signs of different types of elder abuse. If you see any of these signs, start documenting them, and bring your concerns to the management at the nursing home facilities.
If your concerns aren’t addressed and you fear for your loved one’s safety, you should report your suspicions to state authorities. In urgently dangerous matters, call the police to report this abuse.
Go in with an open mind, and after arming yourself with research about the facility. Nursing homes that do things right will have solid patient care policies and procedures, and they will quickly punish employees who do not uphold their level of quality care. They will also encourage you to visit frequently, and actively involve you in their care to help them thrive.
