New York has the fourth largest population of older adults in the United States, with 3.5 million residents over the age of 65. That’s more than the entire population of 21 other states, and an increase of 31% compared to the last decade. It’s no surprise that nursing home abuse in New York is an unfortunate reality.
Several high-profile cases concerning nursing home fraud and abuse in New York have recently hit the news. Most notably, a Supreme Court lawsuit against four facilities siphoning $83 million dollars of taxpayers’ money while simultaneously neglecting residents.
While that shouldn’t scare you away from considering assisted living, these cases prove the value of knowing your rights. Individuals moving into a nursing home, or with a relative in a facility, must learn the signs of abuse. Because in this case, what you don’t know might actually hurt you or someone you love.
New York Nursing Home Resident Rights
Many people are unaware that nursing home residents have federal and state rights that ensure residents a level of care. Knowing these rights is vital, because violations, per NY State Public Health Law §2018-D, are the basis for most nursing home abuse cases.
New Yorkers can find all of their nursing home resident rights in this Department of Health handbook. But some general ones everyone should be aware of include:
- The right to dignity, respect, and a comfortable living environment
- Notifications in writing, services and fees before entering a facility
- Privacy in communication, treatment, and medical records
- Freedom from verbal, sexual, mental, and physical abuse
- Adequate care and quality treatment without discrimination
- Agency over schedules, activities, and other preferences
- Freedom from restraints
- Protection of money and personal property
- The right to exercise your rights without fear of incrimination
How to Define Nursing Home Abuse in New York
The rights mentioned above are also listed in NYSPHL §2803-C. New York divides nursing home abuse into several categories, some of which may occur at the same time. A skilled nursing home attorney can help determine which area your claim may fall. Their consultation will also help you find the damages you should seek.
Physical and Emotional Abuse
Nursing home physical abuse occurs when a caretaker or facility employee intentionally causes bodily injury to an elder or vulnerable adult. It may show up as bruises, bleeding, broken bones, burns, swelling, and more.
The WHO reported that 64.2% of staff from institutional settings report abusing residents in 2016. They project that nursing home abuse will go up in the distant future as populations continue to age.
Examples of physical abuse include:
- Painful shoving
- Excessive use of restraints
- Intentional refusal of resources
Emotional abuse, on the other hand, may be a little trickier to spot. That’s owing to the fact it may be covert and doesn’t leave an evidentiary mark. Many elders often stay quiet about this type of abuse as well for fear of retaliation.
Psychological and emotional abuse may take the form of:
- Name-calling or insulting their appearance
- Isolating them from other residents
- Blaming them for minor offenses
- Talking down to the resident
Reassure your loved one that reporting abuse is protected in New York law through 10 NY Comp Codes Rules and Regs § 81.8. Any further retaliation from nursing home facilities may face legal consequences under Section 12 of New York’s Public Health Law.
When a caretaker or nursing home employee inflicts sexual acts on a vulnerable adult, that’s considered nursing home sexual abuse. Though people find it hard to believe, it still does—by staff and also other residents. But whomever the perpetrator, a nursing home resident is legally entitled to protection from any unwanted advances.
Examples of what constitutes sexual nursing home abuse in New York include:
- Unwanted intimate touching of any kind
- Forced nudity
- Forced observation of sexual acts
- Taking sexually explicit photos/videos of a resident and spreading them online or in-person. This includes pictures of residents who are not fully clothed while being cared for (e.g. when bathing and dressing).
- Non-consensually looking at pornography or distribution of sexual material
Women and residents with dementia are more likely to be victims of sexual abuse according to the NCEA.
Financial abuse of the elderly is unfortunately very common and can be devastating both fiscally and psychologically.
Sadly, because senior citizens typically have assets such as social security, savings, and retirement funds, they become prime targets.
Examples of nursing home financial abuse and manipulation by unscrupulous caregivers may include:
- Taking belongings or money from a resident’s room
- Unauthorized use of a resident’s credit, debit, or bank card
- Changing the recipients of a will or life insurance policy
Many seniors often don’t realize someone is draining their accounts until it’s too late because they trust their caregivers. This is a particularly cruel way to take advantage of the elderly, which should be responded to with legal action.
Nursing Home Neglect in New York
In a separate but related category is nursing home neglect, which is characterized by negligence rather than intentional harm. In most cases, neglect results from inaction and a subpar standard of care rather than outright malice.
Specific examples of nursing home neglect may include:
- Failing to provide care, shelter, clothing, or food
- Letting residents remain in bed too long for bed sores to develop
- Not performing prescribed medical or wound care for residents
- Refusing to change residents after repeat episodes of incontinence
- Not providing walkers and wheelchairs to those with mobility issues
- Neglecting to bathe residents
- Turning off a call light or routinely not responding to resident requests
Because nursing home neglect is so common, the New York legislature implemented several laws to enforce basic care for residents. For example, under NYSPHL §2895-B nursing homes must hire staff to provide at least 3.5 hours of care per resident per day.
Unfortunately, owing to staffing shortages, most facilities fall short of that, with many saying it’s impossible to meet that mark.
Proving Nursing Home Abuse in New York
With nursing home abuse and neglect cases in New York, you will want to collect as much evidence as possible. Prior to reporting the abuse and meeting with your lawyer, document everything you can think of surrounding the episode.
While you may not have access to all the information on this list, these are some great items to start gathering:
- Name and age of the victim
- Any known mental or physical impairments
- Name, address, and phone number of the nursing home
- Your contact information and relationship to the abused
- Facts and corroborated information about what happened
- Date or dates of the suspected abusive event
- Any other agencies with whom you may have contact (such as law enforcement or social services)
- Contact information for any witnesses
- Details about the alleged perpetrator(s) including name, age, physical description, and contact info if available
The more evidence of abuse or neglect you gather, the stronger your nursing home lawsuit may be. Your legal action may prevent further harmful actions from happening to other residents in the future.
What Type of Lawsuit is Nursing Home Abuse in New York?
There may be two types of cases in nursing home abuse in New York: criminal and civil.
If the abuse is particularly egregious, you may have to file a criminal suit against the facility. This might include the possibility of potential jail time for the perpetrator. While a criminal case will likely go to trial first, that does not preclude you from filing a civil lawsuit.
Most cases where you will need to retain a lawyer will be civil. You’ll be suing for damages in a personal injury case on behalf of the injured party (i.e. the abused resident).
To establish liability in a nursing home abuse claim, you must prove:
- The at-fault party held a duty to protect residents from harm inside the nursing home.
- The at-fault party did not uphold that duty, causing harm to the resident.
- The breach in care was responsible for an accident or damages causing the resident to suffer injury.
- The injury results in monetary expenses and significant psychological losses for the resident.
Types of Damages in a New York Nursing Home Abuse Claim
There are two types of damages you can pursue for nursing home abuse in New York: compensatory and punitive.
These are damages to cover some measurable loss as a result of the abuse.
If the losses are quantifiable somehow—such as medical expenses or financial depletion from exploitation—they are economic damages.
Non-economic and economic damages for nursing home cases don’t have caps in New York law, meaning the court can award you as much compensation as needed without limit for your losses.
Punitive damages are slightly different in that their purpose is to punish the perpetrator, not cover any losses.
The idea is that punitive damages will function as a deterrent against repeat offenses of this nature. In some ways, that makes them similar to criminal convictions, but this is on the civil side.
For a punitive claim to succeed there must be clear evidence that the defendant was acting with intent to harm. In other words, they knew what they were doing and the damages stem from their malicious actions.
How to Report Nursing Home Abuse in New York
Nursing home abuse still goes under-reported in too many cases, further heightened by the pandemic. But the state is trying to correct that by offering many ways for people to report suspected abuse. These include:
- Filing via the Nursing Home Complaint Online Form, provided by the New York State Department of Health. You may submit a case online or by mail, FAX, or email.
- Calling the Nursing Home Complaint Hotline at 1-888-201-4563. This number is available 24 hours a day, 7 days per week. However, it’s only personally staffed Monday through Friday from 8:30 a.m. to 4:45 p.m. with voicemail available the rest of the time.
- Having nursing home staff who witness the abuse also report via the online Incident Reporting Form through the Health Commerce System.
The Centralized Complaint Intake Unit of the New York State Department of Health investigates all nursing home complaints. However, it’s important to note that an individual must file the claim within a year of the incident.
New York Ombudsman
Though the NYSDOH is the primary source for New York nursing home abuse investigations, there’s also a Long-Term Care Ombudsman.
This program is in place to help advocate for older adults in long-term living or nursing home accommodations. However, the Ombudsman office doesn’t have the power to enforce resolutions. It can be a good place to start, however, when seeking help with suspected nursing home abuse situations.
To locate the New York Ombudsman in your area, visit the Office for the Aging site, or call 1-855-582-6769.
New York Statute of Limitations for Nursing Home Abuse
The time frame may be shorter if it’s a government run facility though, so ask your lawyer.
The best option is always to file as soon as possible. That way facts don’t get lost or murky with the passage of time.
Find a New York Nursing Home Attorney With LegalASAP
Working with an attorney who has experience dealing with these types of cases increases your chances of a positive result. And the good news is that nursing home abuse lawyers in New York typically work on contingency. That means you won’t have to pay a penny until there is a settlement in your favor.
Let us connect you with a qualified attorney today through our network of 500+ law firms. The sooner you get a case evaluation, the sooner you can get your loved one into a better situation.
Kimberly Dawn Neumann
Kimberly Dawn Neumann is a multi-published NYC-based magazine and book writer whose work has appeared in a wide variety of publications ranging from Forbes to Cosmopolitan. She graduated summa cum laude from the University of Maryland, College of Journalism. For more, visit: www.KDNeumann.com, Instagram @dancerscribe, and Twitter @KimberlyNeumann