Business Malpractice Today: The Devastating Effect of Nursing Home Abuse

Medical malpractice claims responding to nursing home abuse typically involve litigation over informed consent. Resident (“patient”) signatory of a nursing home admissions agreement is the instrument for meeting informed consent rules in the United States. When an elderly resident is admitted to a nursing home, there may also be third party assuming responsibility. Responsible parties providing signatory release of a nursing home patient for medical treatment and palliative care are obliged to informed consent. Informed consent is part of U.S. tort laws providing for duty to a reasonable standard of care by medical professionals and responsible parties.

Part of the scope of legal provision protecting the rights of patients, federal and state informed consent laws prohibit nursing home facilities from requiring third party guarantee of payment as a condition of agreement in admission of a patient to a facility (42 U.S.C. §1396r(c)(5)(A)(ii). Legal liability resulting from a nursing facility’s attempt to force contractually binding payment of resident unpaid accounts, may be the basis for a complaint.

Exceptions to this rule involving circumstances where the responsible party has agreed to mutual assent on an admissions agreement, guaranteeing performance of duties to the contract include control or access to a resident’s assets. Estate planning record showing finance or other assets set aside for medical or nursing home care during the last years of a resident client’s life will likely sustain a provider’s claim.

Nursing home debts are a substantial claim of financial negligence if proven that a responsible party has the power of attorney over a resident’s finances. Unlike medical malpractice claims over violation of informed consent by a medical professional, where the risk to a patient is accorded the negligence calculus in determination of forewarning and other criteria to duty, the obligation of the responsible party to the patient is the assumption of that party’s financial care.

The failure of a responsible party to pay a nursing home owed monies for a resident patient’ care is a violation of contractual obligation. When a responsible party is evidenced to be contractually liable to breach of an Admissions Agreement, a counter complaint of medical malpractice where there is a disagreement over the terms and conditions of the original informed consent by the patient may deem null and void court.

Even where responsible parties can sustain defense against financial obligation in a responsible party liability claims, the liability of duty to a reasonable standard of care may still result in joint liability in a nursing home abuse case. The absence of knowledge about abuse of an elder residing in a nursing home, where a responsible party has unknowingly failed to pay may not absolve that defendant of liability to the resident party where medical malpractice or other negligence complaint has been determined by a court.

In most states, protection of responsible parties from tortious grievances filed by nursing facilities rests on contract law restricting or prohibiting the third party guarantees at time of a resident’s admission. The existence of such laws, however, has not entirely deterred facilities from aggressively pursuing claims against responsible parties; and this is especially case where a medical malpractice negligence claim is at stake. Responsible parties are advised to seek legal counsel from a nursing home abuse attorney prior to signing an Admissions Agreement.