As a patient in any medical facility, you have rights. Unfortunately, many individuals are willing to trust doctors and nurses, even when they know that the treatment they're receiving is wrong. If you have been mistreated in a nursing home or other care facility, you deserve competent legal care.
Nursing Home Residents Have Rights
Nursing home residents have a number of rights. Those include:
Right to be free from abuse and neglect
Right to manage their own finances
Right to have their own clothes and to have their personal property in their room
Right to choose their own physician
Right to participate in decisions about their medical care
Right to be free of restraints, including physical restraints such as straps or chemical restraints such as unnecessary sedatives
Right to private, unimpeded visits and communications
Right to see a lawyer or social worker
Right to leave if they wish to be discharged
Right to make grievances when they feel their rights are being violated
Right to refuse to perform work inside the nursing home
Sadly, millions of Americans are mistreated by medical professionals. If you or a loved one has faced this kind of abuse, you want assistance from attorney Kevin Garrison.
It is estimated that there are millions of acts of elder abuse in the United States in each calendar year. Many acts go unreported due to several different factors (for one, the elder may feel stupid, another may be memory problems, a third problem is that often the Defendant can be a family member or a "loved-one".)
While there are many different things a loved one, caretaker, friend, relative or trusted professional can do to injury an elderly person, here are a few of the most common acts constituting elder abuse:
- Committing acts of financial elder abuse (taking money or property belongings to an elder in bad faith)
- Physical caretakers that allow bedsores to develop
- Neglecting the needs of an elder under medical care
- Physically beating or assaulting a vulnerable adult or senior citizen
Arizona Elder Abuse Laws
The court in Davis v. Zlatos
(Ariz. Ct. App. 2005)211 Ariz. 519, 524 [123 P..3d 1156, 1161] described Arizona's elder abuse laws ("APSA"):
"In 1988, the legislature determined that elder abuse in Arizona was a serious problem justifying legislative intervention and enacted the APSA, which criminalized abuse of an incapacitated or vulnerable adult, designating elder abuse a class 5 felony. Denton v. Superior Court, 190 Ariz. 152, 155, 945P. 2d 1283, 1286 (1997) ("The legislature's intent and the policy behind the elder abuse statutes are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse.") The next year the legislature amended the statute to create a statutory civil cause of action for elder abuse."
In Estate of McGill ex rel. McGill v. Albrecht (2002) 203 Ariz. 525, 527 57 P.3D 384, 386 the Court discussed the Arizona "Adult Protective Services Act:"
Adopted in 1989, the civil version of APSA was intended to create a statutory civil cause of action. The legislature create this cause of action with the following words:
"An incapacitated or vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in Superior Court against any person or enterprise that has been employed to provide care, [or] that has assumed a legal duty to provide care."
A. R.S § 46-455(B). Incapacitated adults include those suffering from:
Impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, advanced age to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his or her person.
Arizona elder abuse statutes can be found in A.R.S. § 13-3623 which defines abuse. The law in Arizona basically protects adults over 18 who cannot protect themselves due to a mental or physical impairment. Some basic definitions you need to know include:
1. "Emotional abuse" means a pattern of ridiculing or demeaning a vulnerable adult, making derogatory remarks to a vulnerable adult, verbally harassing a vulnerable adult or threatening to inflict physical or emotional harm on a vulnerable adult.
2. "Physical injury"
means the impairment of physical condition and includes any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling,injury to any internal organ or any physical condition that imperils health or welfare.
3. "Serious physical injury" means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
4. "Incapacity" means an impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his/her person.
5. "Vulnerable adult" means an individual who is over eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.
What types of damages are available in an Arizona elder abuse case?
The plain wording of A.R.S. § 46-455
allows the court to award damages for pain and suffering. If the court finds liability under this statute, it may order the tortfeasor to pay "actual and consequential damages, as well as punitive damages, and costs of suit to those persons injured by the conduct described in this section." A.R.S. § 46-455(F)(4). Actual damages are synonymous with compensatory damages. Compensatory damages include damages for pain and suffering. Thus, actual damages include damages for pain and suffering, and the elder abuse statute affirmatively permits the trial judge to award such damages.
The legislature's intent and the policy behind the elder abuse statutes are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse. In civil actions for elder abuse, pain and suffering may be the only compensable damages the victim may recover. Because incapacitated or vulnerable adults are not employed, they cannot recover damages for lost earnings or diminished earning capacity. Because incapacitated or vulnerable adults generally have Medicare, Medicaid coverage, or other insurance, they may not recover for medical expenses. Property damage is generally not an issue in elder abuse cases. As a result, the most likely form of damages recoverable in these cases are for pain and suffering. Under the Arizona statutes, damages up to two times the amount of the monetary damages may be established under either A.R.S. §46-456(A),(B) or (C).
Survivors of an elder abuse victim can recover pain and suffering when an elder abuse Plaintiff dies
The legislature intended to provide victims of elder abuse or their representatives with the ability to recover damages for pain and suffering even if the victim dies prior to judgment. This intent is evident from the plain words and the underlying policy of the elder abuse statute. The court in theDentondecision stated, "We hold that representatives of elder abuse victims may recover damages for pain and suffering endured by the victims, notwithstanding the death of the victims. 190 Ars. 152, 157 945 P.2d 1283, 1288 (1997)