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• Railroad & Train Injuries
• Catastrophic Injury / Wrongful Death
• Personal Injury
• Medical Injuries
• Prescription Drug
• Defective Products
• Workplace Injuries
• Assisted Living Neglect
• Vehicle Injury
• Large Truck & 18 Wheelers

• Tell Us What Happened

Elder Abuse and Neglect

Assisted Living & Other Adult Care

Assisted living facilities offer a housing alternative for older adults who may need help with dressing, bathing, eating, and toileting, but do not require the intensive medical and nursing care provided in nursing homes. Unfortunately, assisted living centers are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.  In an attempt to compete with nursing homes, some centers may admit residents whose needs or illness levels exceed the staff's skill or training. For example, most major chains promote special Alzheimer's disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents. This means consumers to be even more vigilant about choosing a center.

One study of assisted living found that some of the strengths of the assisted living arrangement for older adults also create environments at increased risk for abuse and neglect; specifically, the presence of mental impairment combined with minimal regulations and oversight, private rooms, low staff, low staff ratios, minimal staff training and high staff turnover. This means families with loved ones in assisted living need to be even more alert to signs of abuse and neglect.

There are many other types of adult care facilities, such as adult day care, adult board and care, and the like. In these cases, the legal theory of “premises liability” also holds true. That is, that the owners and occupiers of property are legally responsible for accidents and injuries that occur on that property.

For the most part, the same signs of abuse and neglect in nursing home patients holds true for residents of assisted living facilities.

 For more information on assisted living:

• Consumer Consortium on Assisted Living
  The Consumer Consortium on Assisted Living (CCAL) is a national nonprofit consumer-based organization nationwide focused on the needs, rights and protection of assisted living consumers, their caregivers and loved ones.


• Assisted Living Consumer Alliance
  The Assisted Living Consumer Alliance (ALCA) is a national collaboration of groups and individuals working together to promote consumer safety, choice, and rights in assisted living.
  


• Center for Excellence in Assisted Living
  CEAL was created to be an objective resource center to facilitate quality improvement in assisted living; increase the availability of research on quality in assisted living; and to provide a national clearinghouse for information on assisted living.

Nursing Homes

Nursing homes care for millions of America’s most vulnerable citizens. For this reason, they are highly regulated by state and federal law.  Nursing homes are businesses, however, and one way many business owners increase profits is by cutting labor costs.  Many nursing homes are understaffed and nurses and care providers overworked.  When the staff can’t respond in a timely manner, mistakes happen.  Pills are given too often or not at all.  Patient hygiene suffers.  Signs of serious illness are overlooked.  Staff inattention and failure to respond to patients’ requests is the number one complaint filed against nursing homes.  The most serious signs of inattention are neglect and abuse.

WHAT ARE ABUSE AND NEGLECT?
Abuse means causing intentional pain or harm. This includes physical, mental, verbal, psychological, and sexual abuse, unreasonable seclusion, and intimidation. If you witness abuse, call 9-11. If harm is not imminent and you are unsure, you can call a nursing home or assisted living attorney at Duncan Firm for assistance. Examples of abuse include:

• Physical abuse from a staff member or an intruder or visitor from outside the facility -- including hitting, pinching, shoving, force-feeding, scratching, slapping, and spitting;
• Psychological or emotional abuse -- including berating, ignoring, ridiculing, or cursing a resident, threats of punishment or deprivation;
• Sexual abuse -- including improper touching or coercion to perform sexual acts;
• Substandard care which often results in one or more of the following conditions -- immobilization, incontinence, dehydration, pressure sores, and depression;
• Rough handling during care giving, administration of medicine, or moving a resident.

Neglect is the failure to care for a person in a manner which would avoid harm and pain, or the failure to react to a situation which may be harmful. Neglect may or may not be intentional. Examples include:

• Incorrect body positioning -- which leads to limb contractures and skin breakdown;
• Lack of toileting or changing of disposable briefs -- which causes incontinence and results in residents sitting in urine and feces, increased falls and agitation, indignity and skin breakdown;
• Lack of assistance eating and drinking -- which leads to malnutrition and dehydration;
• Lack of assistance with walking -- which leads to lack of mobility;
• Lack of bathing -- which leads to indignity, and poor hygiene;
• Poor hand washing techniques -- which leads to infection;
• Lack of assistance with participating in activities of interest -- which leads to withdrawal and isolation;
• Ignoring call bells or cries for help.

Misappropriation of Property/Funds means the deliberate misplacement or misuse of a resident’s belongings or money without the resident’s consent. Examples include:

• Not placing resident funds in separate interest-bearing accounts where required;
• Stealing or embezzling a resident’s money or personal property, such as jewelry or clothing.

Signs of Abuse or Neglect

• Bedsores - Bedsores are sometimes called pressure sores or decubitous ulcers.  These sores are caused by poor nutrition and prolonged pressure on the bodies of patients allowed to lie unattended for long periods of time.  Bedsores first appear as painful red inflammations on the skin, and can worsen until the sore eats through skin and muscle to expose bone.  A properly cared for nursing home resident will not suffer from bedsores.
• Bruises - Bruises heal slowly in people with poor circulation, and can be caused from many things, but always should be investigated.  Sometimes bruises can be the result of rough treatment, falls, or even sexual abuse. 
• Falls - Serious and/or frequent falls are a definite symptom of adult care facility neglect.  Document all falls, even minor ones.  It is the legal responsibility of an adult care facility to help prevent falls. 
• Restraints - Nursing homes use both physical and chemical restraints on their patients.  These include leg restraints, arm restraints, hand mitts, cuffs, wheelchair safety bars, bedrails, lap pillows and tight beds sheets. Some may use heavy sedatives to make patients more manageable. Legally, restraints are only to be used if authorized in writing by a doctor for a specified and limited time period or when necessary to protect the resident.
• Weight Loss - Proper nutrition and hydration are extremely important for long-term care residents. Without proper nutrition, the body begins to eat itself in a serious medical condition called “cachexia.”  Also, malnutrition increases susceptibility to other diseases and increases suffering. If you notice your relative in adult long-term care losing weight, especially if other abuse and neglect warning signs are present, don’t wait to report it.
• Anxiety, fear – Signs of psychological abuse may be harder to spot. If your loved one is constantly concerned with what the caregiver or staff wants or needs (and the dismissal of their own needs), mental or psychological abuse might be occurring. If your loved one begs you not to leave when you visit, this may also be a sign. If you notice new phobias, or if your loved one becomes frightened at things that he/she was not afraid of before, psychological harm may be happening.

Reporting Neglect and Abuse

If you witness abuse, first call 9-11. It is important to prevent any further harm. Anyone can report abuse or neglect.  The U.S. Administration on Aging also operates an elder abuse toll-free hotline, 1-800-677-1116. This number is available from Monday through Friday 9 AM-8 PM (except U.S. federal holidays).

It is a violation of State and Federal law for any person, including facility staff, volunteers, visitors, family members or guardians, or another resident, to neglect or abuse a resident.

• Anyone can and should report neglect and abuse. If you suspect neglect or abuse, or if a resident tells you they are experiencing this problem, it is important to believe the resident and REPORT THE ALLEGATION IMMEDIATELY. This will help prevent further suffering by any resident.
• Many states have laws that require the reporting of abuse and neglect. Find out what your state requires.
• Put your report in writing, date it, and keep a copy. Convey as much information as you can about the situation. Remember to include:

Who - The name of the victim, including age and address; the name of the facility and the people responsible for the victim’s care; the identity of the person who you believe abused or neglected the resident;
What  - The nature and extent of harm and any physical signs of abuse or neglect; any previous incidents; what happened;
Where and when - The place where the incident happened and time and date of the incident.
Provide as much background information as possible. A thorough report will help the investigator to address the situation quickly. A Duncan Firm nursing home special can review your information to determine if legal action would be appropriate.

Make Your Report To:

• The facility’s  administrator, director of nursing, and social worker
• The state or local ombudsman
• The local police or State law enforcement
• A Protection and Advocacy or Adult Protective Services agency
• The state survey agency that licenses and certifies nursing homes or assisted living facilities (often in the Health Department)
• A citizen advocacy group or other church or community group that visits regularly.

Keep trying until you get the assistance you need.

 After the Report:

• Follow up with the resident and facility to make sure the neglect or abuse has stopped.
• Follow up with the person or agency conducting the investigation. Ask for written copies of findings if allowed by law.
• If the perpetrator is charged with abuse or neglect, the charge will be referred to the state licensing authority. If the guilty person is a nurse aide, the charge will be reported to the state nurse aide registry. This registry is used by nursing homes to prevent abusive aides from working with the elderly. Nursing homes are required to check the registry before hiring a person.
• If all the safety options fail, you may need to contact the local media, the U.S. Justice Department, or seek private legal assistance. The Duncan Firm has expertise in this area and can help advise you.

The Duncan Firm would like to thank the National Citizens’ Coalition for Nursing Home Reform (NCCNHR) for contributing to the above information. NCCHNHR has several publications that may be of interest. Call 202-332-2275 for a publication list or visit their website.

Frequently Asked Legal Questions

I’m afraid the nursing home will retaliate against my loved one if I complain. How can I prevent that?
Although it is illegal for a nursing home to retaliate against any person for complaining about abuse or neglect, it happens. The first thing to do is to make sure you make your complaint to the facility in writing, and date and keep a copy. Report your complaint and fears to your relative’s doctor, and call your state nursing home ombudsman. If you fear for the safety of your loved one, you may have to move him or her to another nursing home. For legal questions or advice, contact a nursing home attorney with the Duncan Firm.
What is negligence and how do I prove it?
Negligence is basically carelessness. In order to prove negligence, the law requires that you must show that the person who caused you injury was obligated under the law to be careful under the circumstances; that the person failed to do so, and that this failure led to injuries that caused you suffering.  Doctors and licensed care facilities  are required by law not to be negligent in carrying out their duties.
If you have a general question that is not answered here, please click here to send your question to us and we will do our best to help you.
Can a nursing home be held negligent if an injury is found?
Yes. Nursing homes are held accountable to similar standards of care that you would expect from any hospital or other health care facility. Nursing homes can be held liable for negligence, and you can seek financial compensation for damages suffered because of that negligence to you, a family member, or a loved one.
 What is my nursing home claim worth?
Each case is different and dependent on its own facts. It is impossible to answer such a question until the facts of the case have been thoroughly reviewed and the injured person has finished medical treatment. However, do not delay seeking legal advice until treatment is finished.
If you have a general question that is not answered here, please click here to send your question to us and we will do our best to help you.
How long does it take to settle a nursing home claim?
Each case is different and how it is handled depends on the facts of the case, the injuries, and the parties involved. Generally, the more complicated the case, the longer it takes to settle. Also, the settlement process can't even begin until the injured person's medical treatment is finished. The cost of the medical treatment will be a factor in any settlement.
If you have a general question that is not answered here, please click here to send your question to us and we will do our best to help you.
Will I have to go to court?
Each case is different and how it is handled depends on the facts of the case, the extent of injuries, and the parties involved. Most of the time parties will attempt to settle a case rather than go to trial. It’s hard to know in advance, however, if this will be successful or if the case will end up in court.
If you have a general question that is not answered here, please click here to send your question to us and we will do our best to help you.
How long do I have to file a claim?
A person must file a lawsuit within a certain amount of time after the injury or death under what are known as statutes of limitation. These statutes vary from state to state and depend on the type of injury, the state where it occurred, the state where the lawsuit is filed, the age of the person bringing the suit, and whether the suit includes a wrongful death claim. In Arkansas, the statute of limitations for a personal injury or wrongful death lawsuit filed by an adult is 3 years. Obviously, the sooner you seek legal advice for suspected abuse or neglect, the better.
If you have a general question that is not answered here, please click here to send your question to us and we will do our best to help you.
Can Medicaid or Medicare patients be treated differently?
No. If the nursing home is certified, it agrees to treat every resident equally once admitted, regardless of financial source of payment (private pay, Medicaid, Medicare, etc). It must promise all applicants and residents, along with federal and state governmental entities, that the home will comply with federal and state regulatory standards relative to nursing home care.
How much will filing a lawsuit cost me?
Nothing.  The Duncan Firm will provide you with a free consultation. If the firm agrees to accept your case, it will work for free on your behalf. If the firm is successful in obtaining a monetary settlement or jury verdict, it will retain a portion of the proceeds as payment for its services. 
Who else can help me advocate for my loved one?
Under the federal Older Americans Act, every state is required to have an Ombudsman Program that addresses complaints and advocates for improvements in the long term care system. To find the ombudsman nearest you, contact your State Ombudsman office.
An Ombudsman is an advocate for residents of nursing homes, board and care homes, and assisted living. They are trained to resolve problems. If you want, the ombudsman can assist you with complaints. However, unless you give the ombudsman permission to share your concerns, these matters are kept confidential.
A nursing home attorney at the Duncan Firm can advise you as to your legal rights and options involving suspected abuse or neglect.

Nursing Home Residents Rights

Nursing home residents have the following rights under federal law:

1. To be free from verbal, mental and physical abuse; corporal punishment; and involuntary seclusion.
2. To be free from restraints, both chemical and physical,  except as authorized in writing by a doctor for a specified and limited time period or when necessary to protect the resident or other residents from injury.
3. To have safe, decent, and clean conditions.
4. To be treated with consideration, respect, and full recognition of dignity and individuality, including privacy in treatment and care of personal needs.
5. To be fully informed by a doctor of his or her medical condition, unless the doctor decides that informing the patient would be against the patient's best interests, and to participate in the planning of medical treatment.
6. To refuse medical treatment as permitted by law and to be informed of the consequences of refusing medical treatment.
7. To refuse to participate in experimental research.
8. To have personal medical records treated in strict confidence.
9. To have established daily visiting hours.
10. To have visitation by an ombudsman, physician, family members, and all individuals that provide health, social, legal, or other services who wish to visit.
11. To retain personal possessions and clothing as space permits, so long as doing so would not complicate a medical condition or infringe on another resident's rights.
12. To participate in and meet with social, religious, and community groups.
13. To send and receive personal, unopened mail.
14. To associate and communicate privately with other individuals as desired.
15. To manage personal financial affairs or to delegate that task to another person of the resident's choosing.
16. To be fully informed of available services and related charges.
17. To be encouraged and assisted to exercise rights as a patient and as a citizen and to voice grievances and recommend changes in policies and services to staff members or outside representatives without interference, coercion, discrimination, or reprisal.
18. Not to be required to perform services for the nursing home that are not included in the resident's plan of care.
19. If married, to be assured of privacy during spousal visits. If both spouses are residents of the nursing home, to be permitted to share a room, if medically feasible.
20. To be transferred or discharged only for medical reasons, or for the resident's own welfare or the welfare of other residents, or for nonpayment (except as prohibited by Medicaid), and to be given reasonable advance notice of transfer or discharge.
21. To be fully informed, as evidenced by a written acknowledgment, prior to or at the time of admission and during the stay, of all these rights and all rules and nursing home regulations that govern personal conduct and responsibilities.
    
    In addition to these rights, click here to read the Nursing Home Reform Act of 1987 at which specifies what nursing homes must do to be in compliance with the law.

Arkansas Resources

• 1-800-332-4443 (Toll free in Arkansas)
• Outside of Arkansas: 1-800-482-8049
• E-mail: Carolyn.singleton@arkansas.gov
• Arkansas Domestic Violence/ Battered Women Hotline: 1-800-332-4443

More Information
Arkansas Adult Protective Services

• 1-800-582-4887
• In Pulaski County: 501-682-8425
• Fax: 501-682-1967, Attention Complaint Unit
• E-mail: complaints.OLTC@arkansas.gov

More Information

• Arkansas Office of Long Term Care, Complaints Unit
• Arkansas Long Term Care Ombudsman
• Arkansas Advocates for Nursing Home Residents
• Kathie Gately
  State LTC Ombudsman
  State LTC Ombudsman
  AR Division of Aging & Adult Services
  P.O.B. 1437
  Slot S-540
  Little Rock, AR 72203
  Tel: (501) 682-8952
  Fax: (501) 682-6393

National Resources

• AARP
  AARP serves the needs and interests of people 50+ through information and education, advocacy, and community services provided by a network of local chapters and volunteers throughout the country. This site offers a wide range of information on long-term care and other topics useful to older persons and their families.
• ABA Commission on Legal Problems of the Elderly The American Bar Association Commission on Legal Problems of the Elderly website includes a directory on where to find state law and aging resources, profiles of Commission publications and a booklet on health care advance directives.
• Administration on Aging
  The Administration on Aging site has a link to Eldercare Locator for specific information on state and area agencies on aging and other local community resources. It also includes information about the long-term care ombudsman program, the elder abuse prevention program, caregiver resources, recent press releases and updates on aging nationally.
• Alzheimer’s Association
  The Alzheimer’s Association website offers information about local chapters, resources for families, tips on understanding and coping with Alzheimer’s, updates on research and ways to get involved.
• American Association of Homes and Services for the Aged The members of the American Association of Homes and Services for the Aging (AAHSA) serve two million people every day through mission-driven, not-for-profit organizations dedicated to providing the services people need, when they need them, in the place they call home. AAHSA members offer the continuum of aging services: adult day services, home health, community services, senior housing, assisted living residences, continuing care retirement communities, and nursing homes. AAHSA's commitment is to create the future of aging services through quality people can trust. AAHSA's vision is for healthy, affordable, ethical, aging services for America.
• Assisted Living Consumer Coalition The Assisted Living Consumer Alliance (ALCA) is a national collaboration of groups and individuals working together to promote consumer safety, choice, and rights in assisted living.
• Center for Excellence in Assisted Living CEAL is composed of the diverse stakeholders of assisted living, and was created to be an objective resource center to facilitate quality improvement in assisted living; increase the availability of research on quality in assisted living; and to provide a national clearinghouse for information on assisted living.
• National Association of Area Agencies on Aging The National Association of Area Agencies on Aging (N4A) is the umbrella organization for the 655 area agencies on aging (AAAs) and more than 230 Title VI Native American aging programs in the U.S. The N4A site includes access to the Eldercare Locator, as well as press releases, policy papers and upcoming events.
• National Association of State Units on Aging The National Association of State Units on Aging is a national non-profit membership organization comprised of the 57 state and territorial government agencies on aging. The site includes a list and contact information for all state units on aging, updates, policy information, and access to the Eldercare Locator.
• National Association of Professional Geriatric Care Managers
  NAPGCM is a non-profit, professional organization of more than 1500 practitioners whose goal is the advancement of dignified care for the elderly and their families. The site includes a find-a –care-manager directory.
• The National Association of Social Workers Provides individuals and families with timely information about problems they face every day (including issues related to assisted living and aging) and offers resources to help them cope, including a free national directory of licensed social workers.
• National Center for Assisted Living The National Center For Assisted Living (NCAL) is the assisted living voice of the American Health Care Association (AHCA), the nation's largest organization representing long term care.
• National Center on Elder Abuse The NCEA site describes what elder abuse is, how it can be addressed, how often it happens and to whom, and what the major causes are. This site includes fact sheets on elder abuse, abuse reporting information, updates and features of the center. It also features access to a list server and information about the Center’ clearinghouse and publications.
• National Citizens Coalition for Nursing Home Reform NCCNHR is a grassroots membership organization of concerned advocates working for quality long-term care nationwide. The site includes updates on residents’ rights, quality of care and staffing; links to state long-term care ombudsman programs; fact sheets, updates, and information on citizen advocacy groups.
• NCB – Coming Home The NCB Development Corporation sponsors a program that seeks to create the public policy environment necessary to make affordable assisted living a reality for many frail, low-income seniors.
• Ombudsman Resource Center The National Long Term Care Ombudsman Resource Center provides support, technical assistance and training to the 53 State Long Term Care Ombudsman Programs and their statewide networks of almost 600 regional (local) programs.

Laws/Changes we can stand behind

Assisted Living

• Standardized disclosure forms for assisted living facilities - Only nine states currently offer standardized assisted living disclosure forms to help consumers compare facilities. Such forms tell consumers about basic fees and charges for services, staffing, policies governing when a resident may be asked to leave, types of dementia services offered, and residents’ rights. We support laws requiring standardized disclosure forms for all states.
• Developing a definition of "assisted living" that adequately informs consumers and others as to the type of care that can be provided, while allowing for appropriate variations from one assisted facility to another;
• Developing high, universal standards relating to services, staffing, residents' rights, and other important aspects of assisted living care;
• Ensuring strong enforcement and oversight systems on federal and state levels to protect consumers and assure quality;
• Promoting affordable and accessible assisted living, including equal treatment of those consumers receiving financial assistance from Medicaid or other public programs; and
• Protecting consumers' civil liberties, including freedom from discrimination based on real or perceived disability, race or sexual orientation.
  
  

Nursing Homes
New Five-Star Rating System
On December 18, 2008, the federal Centers for Medicare and Medicaid Services (CMS) launched a new Five-Star Rating System for nursing homes.  We strongly support this new system as a way to compare nursing homes using several extremely important indicators of quality:

• Adequacy of nursing staff (including RNs, LPNs, and Nursing Assistants).
• Performance on quality measures—whether they prevent pressure sores, don’t restrain their residents, prevent urinary tract infections, maintain residents’ ability to walk and perform daily activities, treat pain, and don’t catheterize residents for staff’s convenience.
• Performance on inspections.

NCCNHR doesn’t recommend the Five-Star Rating System as a one-stop tool for choosing a nursing home. Neither do we. Because there may be errors in the data (some of it is self-reported by nursing homes), or the nursing home may have changed since the information was posted. You need to be sure a nursing home is good before you place a loved one, so it is still critically important to visit the facility; talk to residents, families, and others who have experienced the quality of the care it provides; consult with your state or local ombudsman; and ask the nursing home to share its most recent inspection (survey) report with you. It is required by law to let you see it.
Experts say the system is most accurate at detecting the best (Five-Star) and worst (One-Star) facilities. Use extreme caution in choosing a One-Star or Two-Star home unless you have checked it out very carefully. But don’t choose any nursing home without good research.
For more information about choosing a nursing home, see the NCCNHR Guide to Choosing a Nursing Home.