Vol. 14, No. 5, Pg. 28. Helping society's most vulnerable: nursing home litigation.

AuthorBy W. Andrew Arnold and Brian E. Arnold

South Carolina Lawyer


Vol. 14, No. 5, Pg. 28.

Helping society's most vulnerable: nursing home litigation

28Helping society's most vulnerable: nursing home litigationBy W. Andrew Arnold and Brian E. ArnoldAll of us hope to see ourselves and our spouses live into our seventies and eighties, and because as a nation we will live longer than any other generation in the history of the world, this hope is not far-fetched. However, for some of us living longer will mean becoming debilitated in some way by the aging process. For the least fortunate among us, dementia and other debilitating illnesses will necessitate skilled long-term care -- a nursing home. The most unfortunate consequences of all, however, is that for some this supposed care is nothing more than a bed and countless hours, days and months of neglect.

30Combine this too frequent neglect with juries' desire to punish those who hurt our most vulnerable citizens, and it becomes clear why there is an increasing amount of litigation involving nursing home negligence. An understanding of the basic issues and trends in nursing home litigation has become important to many lawyers and eventually will become important to all of us. The purpose of this article is to aid in the understanding of these issues.

As a result of allegations of neglect and abuse occurring in nursing homes, Congress enacted the Nursing Home Reform Law of 1987 (OBRA '87). This statute was designed to provide a comprehensive scheme for regulation of long-term care facilities (i.e. nursing homes) that receive Medicare and Medicaid payments. These regulations may establish the standard of care nursing homes are required to provide their residents and can be found at 42 CFR 483. However, the Nursing Home Reform Law did not provide any private right of action.

In addition, South Carolina has enacted the "Bill of Rights for Residents of Long-Term Care Facilities." S.C. Code Ann. § 44-81-10, et seq. (2001). Essentially, this statute provides that "[e]ach resident must be treated with respect and dignity..." and specifically protects, among other things, a resident's right to choose a personal physician, to be free from physical and chemical restraints and to privacy. S.C. Code Ann. § 44-81-40 (2001). Nonetheless, this statute does not provide for any private right of action. Accordingly, almost all of the litigation regarding nursing home abuse and neglect in South Carolina involves traditional common law remedies for negligence, gross negligence and breach of contract.

Negligence and the standard of care

The elements for a cause of action for negligence are a duty owed by the defendant to the plaintiff; breach of that duty; and damages proximately resulting from the breach of the duty.

Bishop v. S.C. Dept. of Mental Health, 331 S.C. 79, 502 S.E.2d 508 (1998). Duty is generally defined as "the obligation to conform to a particular standard of conduct toward another." Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 483, 238 S.E.2d 167, 168 (1977).

Generally, a nursing home is "under a duty to exercise reasonable care to avoid injury to their patients, and the reasonableness of the care is to be assessed in the light of the patients' physical and mental condition. A nursing home's duty to safeguard its residents from the foreseeable consequences of his or her impairments includes reasonable precautions to protect those who are unable to protect themselves." 40A Am. Jur.2d Hospitals and Asylums section 39 (2002). Because many residents of nursing homes require around the dock skilled care, the duty owed to nursing home residents can be significant.

"Where professional negligence is alleged, expert testimony will usually be necessary to...

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