Civil Actions against Nursing Homes

An action claiming liability of a nursing home owner or employees can be based on negligent personal supervision and care, negligent hiring and retention of employees, negligent maintenance of the premises, and negligent selection or maintenance of equipment. Other common law theories of recovery in addition to negligence may be pursued as well. For example, a nursing home resident who has been abused can pursue damages for assault and battery. Probably the most common theory of recovery against nursing homes, however, is negligence. A nursing home, or its owner or proprietor, can be held liable for negligence if the injured party can prove: 1) that the nursing home's owner or employees breached a duty of care owed to the injured person; 2) that the person's injury was caused by this breach; and, 3) that the nursing home owner's or employee's conduct caused the injury. While these elements apply equally to negligence actions brought by nursing home visitors and residents alike, the following discussion focuses specifically on issues that arise in negligence actions brought by residents.

Proving Duty and Breach of Duty: A plaintiff suing a nursing home may need to offer expert medical testimony about what is or is not a proper practice, treatment or procedure in a given situation, unless the lack of care or skill by the nursing home is so apparent that the average person would comprehend it based on his or her common knowledge and experience. For instance, if a nursing home administrator is alleged to have failed to exercise care with respect to maintaining the nursing home facility, that issue will likely not require expert testimony, whereas a nurse's treatment of a patient's condition might.

Where expert testimony is given, that will help establish the standard of professional care against which the conduct of a defendant nursing home should be measured. This testimony will also help establish that the resident's injuries were the result of the nursing home's failure to exercise the appropriate care.

If an injured resident does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of the nursing home, his or her attorney may invoke a legal doctrine known as "res ipsa loquitur," which places the burden on the nursing home to show that it was not negligent.

This doctrine might be successfully invoked, for example, in a case where a bedridden resident is injured by the use, or failure of, a medical instrument operated only by nursing home staff, and which does not ordinarily injure patients.

Defense Considerations: In negligence actions, nursing homes are entitled to assert the sorts of defenses that are available in most negligence cases, such as the contributory negligence or comparative negligence of the injured party, and assumption of a known risk. However, in some cases, such as where a person has placed him or herself into a nursing home specifically because he or she needed to be protected from the effects of certain medical conditions, the defense of contributory negligence may not be allowed.