The Rights of Nursing Home Residents and Recovery for the Wronged

October 19, 2020

By: Cassandra Voissem, Associate Attorney

Residents of nursing homes are a recognized class of people under Illinois law.  They require protection above and beyond what the common law can provide. Residents are reliant on their facility for a spectrum of daily living needs, including housing, medical care, and treatment. This relationship creates a power imbalance between the cared for and the care providers. In response to this imbalance, Illinois enacted the Illinois Nursing Home Care Act (210 ILCS 45 et seq). When paired with the Nursing Home Reform Act (42 USC §1395i-3), these laws provide residents with a clear set of rights and require facilities to observe certain responsibilities specified in the Acts. If these rights are violated, Residents have been provided a statutory private right of action.   

Rights of Residents

Generally speaking, residents have the following rights:

  • To have their own personal contacts (mail, phone and visits) (210 ILCS 45/2-108)

  • To manage their own finances (210 ILCS 45/2-102)

  • To wear their own attire and have personal belongings in their room (210 ILCS 45/2-103)

  • Access to a secure but readily available storage for their small valuables (210 ILCS 45/2-103)

  • To retain their own physician (at their own expense or utilizing their own insurance) (210 ILCS 45/2-104(a))

  • Access to their medical records and to participate in the planning of their care (210 ILCS 45/2-104(a) and (d))

  • To be free from restraints (210 ILCS 45/2-106)

  • To refuse treatment (210 ILCS 45/2-104(c)) and

  • To be free of abuse and neglect (210 ILCS 45/2-107) (more on this later)

A resident’s rights may be limited by physician orders to promote the health and safety of the resident themselves, other residents and/or staff. A resident’s rights may also be limited by their guardianship status. However, when a resident’s rights are violated, there may be a viable cause of action. 

Facility Responsibilities

Nursing homes that participate in Medicare and Medicaid have certain responsibilities regarding their residents. Nursing homes are required to create a comprehensive “Care Plan” for each resident, individualized to each resident to meet the resident’s health care and general needs. A Care Plan will include an assessment of each resident’s physical, mental and psychological abilities, and limitations as well as provisions for services and activities to achieve or sustain the resident’s highest likely levels of well-being. Along these lines, nursing homes are required to:

  • Provide sufficient nursing staff 

  • Provide adequate nutrition and fluids for each resident to optimize their health

  • Ensure correct ambulation, vision and hearing devices are obtained 

  • Provide the proper medication 

  • Assist those who require with bathing, ambulating, toileting, eating, grooming and communicating and

  • Generally, comply with physician orders with regards to each resident 

These responsibilities may seem like common sense, but they were codified into law for a reason. At the end of the day, a nursing home is a business, and the staffing, and services the residents require are costs that can take away from potential profits. The law prevents the promise of higher profits from impacting the basic care the residents are supposed to receive. If a corner is cut, and injury results, there is recourse. 

When Something Isn’t Right

Many times, our loved ones who are in nursing homes are not capable of communicating if something goes wrong with their care. Residents who can communicate may also feel at the mercy of the facility and powerless to assert their rights. Family members should look out for the following signs to potentially expose a greater problem:  

  • Frequent falls or falls with serious injury

Falls happen on occasion. When a fall occurs, the incident should put into effect a slew of response by the facility: the fall should be documented, injuries noted, physicians notified, IDPH notified, and above all else, the resident should be reevaluated for additional preventive interventions so that a fall does not happen again. Frequent falls are a potential sign that the resident is not receiving the interventions their condition requires. Falls with serious injury are also a potential sign of lack of proper care. For example, a fall from the bed when the resident was supposed to have bed rails could show that interventions ordered were not properly in place. Each fall could be unique in circumstance but was it preventable with the proper care? If so, there is recourse available. 

  • Inexplicable injuries

An out of the blue fracture or unexplained bruises are also potential signs of abuse or neglect. There is going to be a cause to these inexplicable injuries, and it might be an unreported fall or worse, actual abuse. There is always the potential that such injuries are caused by the resident’s conditions, but when there is a lack of such an explanation there is a potential harm happening. 

  • Bedsores (Pressure Ulcers)

Immobility can cause additional pressure to be placed on the lower back which can lead to sores. General prevention of these sores can involve turning and repositioning the resident to alleviate the continuous pressure. Untreated pressure ulcers can lead to infection causing a general decline in health. There is rarely a reason for a pressure ulcer to develop and worsen with proper care.  

  • Excessive hunger or thirst 

As stated above, nursing homes are responsible for providing adequate nutrition and fluid to their residents. There are many scenarios which can lead to a dehydrated or malnourished patient – inadequate staffing, improper or lacking interventions for the resident, incorrect medication, underlying illness, among others. If the cause of the poor nutritional status is a condition, there should be additional treatments put in place to rectify the issue. If the problem persists, there is likely larger issues at play that have to do with the inadequate care and not the conditions.  

If you or your loved one have experienced any of these situations, we want to hear from you because you could have a claim. A successful claim can result in recovery of medical expenses and lost wages, as well as compensation for pain and suffering and attorney fees! Because of the fee shifting provision, we may be able to provide you legal services at no cost to you.

Please call CTM Legal Group at (312) 818-6700 for a consultation today.