The numbers of elders living in nursing and assisted living facilities is growing, and will continue to grow. As populations in these institutions rise, so do instances of care-giver neglect and abuse of elders.
As attorneys, we often see severe cases of elder abuse and neglect, and often find staff and physicians who are not adequately trained in providing the necessary care or documentation, and to maintain the ongoing communication needed for treating older patients. Also, nursing facilities often fail to perform appropriate background checks on employees to determine if they have training, prior experience and the psychological profile required for serving this population.
Oregon statutory law offers only limited remedies to this growing epidemic. It does provide for civil action for physical, emotional or financial abuse, and sometimes treble damages and plaintiff’s reasonable attorney fees. But the statute does not apply unless the institution or its employee is convicted of a financial crime, assault, menacing, reckless endangerment, criminal mistreatment, rape, sodomy, unlawful sexual penetration, sexual abuse, or strangulation.
That’s why, in Oregon, most civil cases against care-givers are brought under common law rather than statutory theories of negligence. The claims are complex and time- and resource-consuming.
Documentation is key to winning such cases. Oregon law requires that the nursing home provide copies of the resident’s chart upon request. OAR 411-085-0310(15-16). It is also essential to obtain the State of Oregon’s annual surveys of a nursing facility from the Seniors and People with Disabilities Division. In addition, the State often investigates incidents giving rise to a civil action and creates a report of its investigation. The State will provide a copy of such report, but will redact the names of the resident, the witnesses and the complainant, based on statutory privileges. Nevertheless, obtaining a list of witness names can be accomplished by a public records request.
It is also important to obtain and review documentation of insurance coverage early in the case. Before 2004, the State of Oregon required nursing facilities to maintain $1,000,000 in liability insurance coverage. Now, so long as a facility has completed proper paperwork, it is required to carry in coverage only $500,000 as a condition precedent to receiving Medicaid payments. Sometimes facilities do not carry even this minimum coverage, in violation of both their contract with the State and the moral obligation to be accountable for injuries they cause.
Correctly identifying the facility's ownership is also key. Often, a facility’s real estate holdings are “purchased” by an outside entity who places them into a protected, real estate investment trust that then owns the property and leases it out to other entities. This mechanism insulates the property owner from the operations on the property, and therefore, from liability for those operations. And on paper, the facility appears to have no assets, other than a few sheets and bedpans.
As in any negligence claim, both economic and noneconomic damages are recoverable. Economic damages may be limited, however, because elders are not typically wage earners. Plus, if an elder is already in a facility, it may be difficult to attribute medical bills to the abuse and neglect. When elder abuse results in a wrongful death action, the statutory cap of $500,000 on noneconomic damages applies. ORS 31.710.
If an elder or their family has a potential claim for abuse, they should contact an experienced personal injury attorney, or two. Many legal, factual, and business issues must be assessed before a civil action against the abuser can be recommended. Whether brought under ORS 124.100 et seq., or as a common law tort claim, these cases must be pursued aggressively by experienced personal injury lawyers, with qualified experts, thorough discovery, and skilled trial preparation. The elderly and disabled victims of abuse deserve no less.
Derek C. Johnson is a shareholder of the firm Johnson, Clifton , Larson & Schaller P.C.. Mr. Johnson focuses his practice in the areas of personal injury, defective products, truck and motor vehicle collisions, nursing home negligence, environmental torts, and wrongful death.