THE RIGHT TO BRING AN ACTION

Who has the right to bring a lawsuit? 

If the injured patient is alive and competent, then they can file the lawsuit on their own behalf.  If the person is incompetent, it is a person named their power of attorney or legally appointed guardian.  If the injured person died as a result of the abuse or negligence an Executor or Administrator of the estate can bring the claim on behalf of the family member’s estate.

Section 2803-c of New York State’s Public Health Law states in part, “every patient shall have the right to receive adequate and appropriate medical care, to be fully informed of his or her medical condition and proposed treatment unless medically contraindicated and to refuse medication and treatment after being fully informed of and understanding the consequence of such action

After an attorney is retained, an extensive investigation must be conducted.  Medical records, incident reports and hospital records must be obtained and reviewed by an attorney and/or medical or nursing examiner.  Interviews with potential witnesses should be conducted as well.  These steps will determine whether the facility was negligent in the care and treatment of the patient.

Some residents may not even be able to communicate that nursing home abuse is occurring due to physical or mental limitation.  If there are any signs or indicators that nursing home abuse is present, immediate action should be taken.

Keep a written journal of the incidents of abuse and neglect.  Document the date and time it was observed and staff on duty at the time.  Take photographs of the facility’s conditions and of the patient.  This will help secure evidence if you want to pursue legal action.

If you feel a resident is not being properly cared for you should:

• Immediately report the incident to the Director of the facility
• Note the time, place and manner in which the neglect occurred
• The name of any personnel you believe may have committed the abuse or neglect
• The names of other personnel responsible for the patient’s care
• Any previous incidents of suspected abuse and neglect