Vol. 77, No. 8, August
Abuse and Neglect in Long-Term Care Facilities:
Civil Justice System Response
As our population ages, the civil justice system will be called on
more frequently to represent and protect our elderly citizens. Lawyers
who serve as advisors, guardians ad litem, estate planners, and
litigators, will be asked to protect the civil rights of victims of
abuse and neglect. To better serve your elderly clients, read what state
and federal laws regulate long-term care facilities, the warning signs
of abuse and neglect, and the potential legal claims and remedies
available to victims and their families.
by Jason T. Studinski
Do citizens forfeit their civil rights once they become residents of
long-term care facilities?1 The answer seems
obvious.2 The most vulnerable among us
should enjoy enhanced, not diminished, legal protection. As our
population ages, more lawyers who serve as advisors, guardians ad litem,
estate planners, and litigators will be asked with greater frequency to
advise and help protect the elderly and infirm. This article is both an
introduction and a springboard to more information and greater
understanding for lawyers who seek to advise and protect our vulnerable
This article examines three distinct yet interrelated topics
involving the civil rights of victims of abuse and neglect and their
families - the extensive framework of state and federal law that
regulates long-term care facilities, the often-missed or misunderstood
warning signs of abuse and neglect, and the potential legal claims and
remedies available to victims and their families.
State and Federal Law Highlights
Depending on their type, long-term care facilities are subject to
regulations that range from nearly comprehensive to relatively minimal.
For purposes of this article, long-term care facilities can be separated
into two categories: nursing homes and community-based residential
facilities (CBRFs). Generally, nursing homes are highly regulated by
both federal and state law, while CBRFs are typically regulated only by
Section 50.01(3) of the Wisconsin Statutes, in relevant part, defines
a nursing home as "a place where 5 or more persons who are not related
to the operator or administrator reside, receive care or treatment and,
because of their mental or physical condition, require access to 24-hour
nursing services including limited nursing care, intermediate level
nursing care and skilled nursing services." Nursing homes are regulated
by a comprehensive network of federal and state law that governs
virtually every aspect of nursing home operation and resident care.
The Omnibus Budget Reconciliation Act of 1987 (OBRA 87), known to
many as the Nursing Home Reform Act (NHRA),3
serves as the cornerstone of this network. Importantly, the NHRA
requires that nursing homes seeking Medicare or Medicaid payment
"provide services to attain or maintain the highest practicable,
physical, mental, and psychosocial well being of each resident, in
accordance with a written plan of care."4
The NHRA also guarantees the rights of nursing home residents, pursuant
to a provision aptly called the Residents' Bill of Rights.5
The Centers for Medicare and Medicaid Services (CMS) have instituted
detailed regulations that help bring clarity and guidance to the
requirements set forth in the NHRA. For symbolic and in many respects
legal reasons, these regulations begin with a section titled "Residents'
Rights,"6 which supplements the NHRA's
Residents' Bill of Rights, and includes critical provisions about such
things as a resident's rights to "access records pertaining to himself
or herself";7 be informed or have his or her
guardian informed about a "significant change in ... physical, mental,
or psychosocial status";8 and have free
choice in choosing medical care providers.9
The federal regulations further augment the NHRA with requirements
regarding quality of care issues,10 such as
activities of daily living,11 pressure
ulcer prevention and treatment,12 mental
and psychosocial functioning,13
hydration,14 nutrition,15 and medications.16
In many respects, companion Wisconsin nursing home law17 mirrors the federal law in both form and content
with a statutory18 and administrative bill
of rights19 and provisions regarding
quality of care.20 However, Wisconsin law
does not merely duplicate federal law. Depending on the circumstances,
either or both bodies of law define residents' rights and set the
standard of care.
While nursing homes provide a wide range of skilled nursing services,
community-based residential facilities (CBRFs) provide access to far
more limited nursing services and tend to focus on providing "care,
treatment, and other services to persons who need supportive or
protective services or supervision because they cannot or do not wish to
live independently yet do not need the services of a hospital or nursing
home."21 Section 50.01(1g) of the Wisconsin
Statutes, in relevant part, defines a CBRF as "a place where 5 or more
adults who are not related to the operator or administrator and who do
not require care above intermediate level nursing care reside and
receive care, treatment or services that are above the level of room and
board but that include no more than 3 hours of nursing care per week per
resident." The law seems to contemplate that CBRFs will admit residents
who do not require extensive nursing services but are not comfortable or
capable of living independently.
CBRFs generally are not regulated by federal legislation or
regulations but rather are creatures of state law. The Wisconsin
Statutes22 and Wisconsin Administrative
Code23 form the basis for the standard of
care and address critical issues of facility operation and resident care
such as admission agreements,24 maintenance
of required records,25 and staffing.26 While CBRFs are not as heavily regulated as
nursing homes (presumably because of the generally lower acuity level of
nursing home residents), the law sets forth considerable requirements
for CBRFs, with a primary goal of ensuring resident safety.
Warning Signs of Abuse and Neglect
The warning signs of abuse and neglect, as described in this article,
may seem obvious. However, in practice, residents, family members, and
lawyers often misunderstand, or worse, miss these red flags entirely.
Residents and family members typically are not repeat customers of the
long-term care industry. Instead, they often are disadvantaged by having
either limited information and knowledge or so much unsynthesized
complex information on unfamiliar topics such as medicine, regulations,
and finances, that they cannot take appropriate action. Residents and
families often struggle with powerful emotions that accompany ill health
or decline. Under these circumstances, residents and their families may
not recognize the difference between symptoms of natural decline and
signals of abuse and neglect.
Lawyers frequently offer little assistance in recognizing, reporting,
and remediating abuse and neglect. It seems as though we view our roles
narrowly and are rightly concerned about issues such as competency or
asset protection; however, many victims were represented by counsel when
the abuse and neglect occurred. Lawyers cannot prevent all abuse and
neglect, but they should be familiar with some of the profound warning
signs of abuse and neglect so that they might better serve their
clients. The following eight, often interrelated, warning signs provide
an introductory framework from which to detect possible evidence of
nursing home abuse and neglect.
1. Skin Condition. Skin condition can reveal much
about the treatment or mistreatment of a resident. Burns, cuts, and
bruises are obvious outward signs that a resident may not be receiving
appropriate care, treatment, or supervision. In addition, decubitus
ulcers, more commonly referred to as bed sores or pressure sores, often
point to substandard care. 42 C.F.R. part 483.25 provides that:
"(c) Pressure sores. Based on the comprehensive assessment
of a resident, the facility must ensure that -
"(1) A resident who enters the facility does not develop pressure
sores unless the individual's clinical condition demonstrates that they
were unavoidable; and
"(2) A resident having pressure sores receives necessary treatment
and services to promote healing, prevent infection, and prevent new
sores from developing."
Pressure sores usually begin as reddened areas that occur on skin
located over boney prominences such as the coccyx region (tailbone),
heels, and hips. If pressure sores are not promptly and properly
treated, they can turn into open wounds, and severely compromise a
resident's health and ultimately cause death. The existence of decubitus
ulcers may be especially important in analyzing the overall care that a
resident is receiving because they are often caused, at least in part,
by poor or inadequate nutrition and hydration, failure to turn and
reposition residents at the appropriate intervals, and a myriad of other
factors that may indicate improper staffing, training, and
2. Weight Loss/Dehydration. Often, vulnerable
individuals have difficulty feeding themselves or drinking without
assistance. In fact, 47 percent of residents receive help with eating
and drinking.28 A variety of medications
and debilitating physical conditions also can contribute to weight loss
or dehydration. The federal regulations set forth the nutrition and
hydration standards that a facility must maintain. For example, 42
C.F.R. part 483.25 provides that:
Jason T. Studinski, U.W. 1998, is a partner in
Kammer & Studinski, Chartered, Portage, and represents victims of
nursing home abuse and neglect statewide. He serves on the board of
directors of the Wisconsin Academy of Trial Lawyers and the Wisconsin
Coalition for Advocacy, and is an active member of the Association of
Trial Lawyers of America's Nursing Home Litigation Group.
"(i) Nutrition. Based on a resident's comprehensive
assessment, the facility must ensure that a resident -
"(1) Maintains acceptable parameters of nutritional status, such as
body weight and protein levels, unless the resident's clinical condition
demonstrates that this is not possible; and
"(2) Receives a therapeutic diet when there is a nutritional
"(j) Hydration. The facility must provide each resident with
sufficient fluid intake to maintain proper hydration and health."
Despite these clear regulations, sources indicate that "[i]t is
estimated that 35 to 85 percent of long-term care residents are
malnourished."30 Given these statistics and
other available information, it is important that residents, family
members, and lawyers pay particular attention to nutritional
adequacy31 and proper hydration.
3. Falls. Falls are a common occurrence in long-term
care facilities but can be extremely difficult to address. In analyzing
falls, one should look for the cause, frequency, and number of falls for
a particular resident. Falls can be caused by a wide range of
preventable factors such as facility design or maintenance,32 improper assessment of residents,33 and improper staffing34 such that assistance is not readily available to
residents. If a resident falls, a facility is required to reassess the
resident, and if certain protocols are triggered, adopt and implement
fall prevention measures.
4. Broken Bones. Broken bones may be the most
obvious sign of abuse and neglect. Unfortunately, family members
sometimes view the occurrence of broken bones as inevitable. Broken
bones may result from falls or other unwitnessed incidents. Not all
incidents causing broken bones can be prevented. However, many such
occurrences are predictable and preventable. Again, the key to analyzing
incidents causing broken bones is to find the cause of the incident.
Importantly, the federal regulations impose requirements on facilities
to prevent accidents.35
5. Restraints. Restraints come in a variety of forms
ranging from tie downs and various garments that restrict movement to
medication. 42 C.F.R. part 483.13 sets forth the standard that
facilities must follow regarding restraints:
"(a) Restraints. The resident has the right to be free from
any physical or chemical restraints imposed for purposes of discipline
or convenience, and not required to treat the resident's medical
Lawyers, advocates, and consumers should be particularly mindful of
the use of restraints because they may appear relatively noninvasive,
such as when psychotropic or antipsychotic medications are used.
However, use of restraints for improper purposes is unlawful and should
be addressed so that the resident may function at the highest
6. Medication Errors. 42 C.F.R. part 483.25 sets
forth the standards for medication errors. It provides in relevant
"(m) Medication Errors. The facility must ensure that -
"(1) It is free of medication error rates of five percent or greater;
"(2) Residents are free of any significant medication errors."
Medication errors are an important indicia of the quality of care
that a resident receives. In the event of a medication error, the
charting should be reviewed to uncover the cause of the medication error
to help determine if it was a mistake or a manifestation of a chronic
problem within the facility.
7. Sexual Assault. Sexual assaults should never
occur in long-term care facilities. The perpetrators may be facility
staff, visitors, and even family members. The federal guidelines require
the facility to prevent sexual assault of residents. 42 C.F.R. part
483.13 provides in relevant part:
"(b) Abuse. The resident has the right to be free from
verbal, sexual, physical, and mental abuse, corporal punishment, and
Abuse and neglect in general37 and
sexual assault38 in particular usually
produce traumatic effects, sometimes including death.
8. Elopement/Wandering. Elopement and wandering are
behaviors that also can lead to injuries and death. The term elopement
refers to behavior by which a resident who is not capable of
self-preservation leaves the facility unsupervised. "A clear,
operational definition of wandering does not exist."39 However, wandering generally describes the
resident's movement within the facility, often without purpose or
appreciation for his or her safety. There are multiple federal
regulations that may set the standard for a facility's care of a
resident who is at risk for elopement or wandering.40 Many interventions can be used to prevent
elopement and wandering. Importantly, if a facility believes that it
cannot meet a resident's needs, the federal regulations do not require a
facility to admit or retain a resident. In fact, the federal regulations
prohibit a facility from admitting or retaining a resident whose needs
it cannot meet.41
The goal is simple, yet its accomplishment elusive: "Each resident
must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental,
and psychosocial well-being, in accordance with the comprehensive
assessment and plan of care."42 Armed with
basic knowledge about the warning signs of abuse and neglect, victims,
families, and lawyers can seek answers and pursue appropriate
Civil Legal Claims and Remedies
To determine the appropriateness of civil claims and remedies one
should gather several important documents that relate to the resident's
care and treatment. (See the accompanying sidebar, "Important
Documents.") Depending on the facts, a variety of potential legal claims
and remedies, ranging from the ordinary to the esoteric, are available
to victims of long-term care facility abuse and neglect and to victims'
Negligence is probably the most common claim brought
in a long-term care facility case. In Wisconsin, there are essentially
four applicable subspecies of negligence: ordinary negligence,
negligence per se, safe place, and corporate negligence.
Ordinary Negligence. A claim for ordinary
negligence, the most common type of negligence, can be brought when a
caregiver or facility fails to exercise ordinary care in its treatment
of a resident.43 The standard of care can
generally be found in the federal and state law.
Negligence Per Se. Residents may also assert claims
for negligence per se, particularly if there has been a violation of a
safety statute,44 safety ordinance,45 or state or federal regulation.46 Arguably, violations of the federal and state
law provisions outlined in this article form the basis for negligence
per se claims.
Safe Place. Residents also may have negligence-based
claims for safe place statute violations. For example, if the long-term
care facility fails to properly construct, repair, and maintain its
facility, and as a result a resident is injured, a violation of
Wisconsin's safe place statute may have occurred.47 Wisconsin's safe place statute provides in
"101.11 Employer's duty to furnish safe employment and place. (1)
Every employer shall furnish employment which shall be safe for the
employees therein and frequenters thereof and shall furnish and use
safety devices and safeguards, and shall adopt and use methods and
processes reasonably adequate to render such employment and places of
employment safe, and shall do every other thing reasonably necessary to
protect the life, health, safety, and welfare of such employees and
frequenters. Every employer and every owner of a place of employment or
a public building now or hereafter constructed shall so construct,
repair or maintain such place of employment or public building as to
render the same safe."
Safe place allegations can be a powerful tool in remediating
dangerous environmental conditions at long-term care facilities.
Corporate Negligence. The most controversial, and
depending on your point of view, effective negligence allegations relate
to corporate negligence. Corporate negligence refers to a breach of the
standard of care that is chronic or systemic in nature. One common basis
for alleging corporate negligence involves insufficient or improper
staffing. The federal regulations require that a nursing home provide
sufficient staffing to meet the needs of each resident all the
time.48 State laws often set forth
additional staffing requirements. Interestingly, Wisconsin's regulations
pertaining to CBRFs49 even set forth
required minimum staffing requirements, and mandate that: "The ratio of
staff to residents shall be adequate to meet the needs of the residents
as defined in their assessments and individual service plans and for the
type of facility."50 Claims for corporate
negligence may be based on other systemic factors such as failure to
train or adequately supervise employees.
Regardless of the species of negligence, those claims survive the
resident's death and may be brought on behalf of the resident's
Breach of Contract. A claim for breach of contract
may arise when the facility fails to keep promises it made in the
admissions contract and related documents. An admissions contract may
quote applicable federal and state law and the facility may agree to
abide by the same. When the facility violates the terms of the
admissions contract and a resident is injured, a claim for breach of
Common Law and Statutory Fraudulent
Misrepresentation. Other claims may arise out of these
documents and from other representations made by the facility, its
employees, agents, and directors. For example, residents may have claims
for common law misrepresentation if they relied on
representations made by the facility to their detriment.51 Similar claims may exist for statutory
fraudulent misrepresentation, pursuant to Wis. Stat. section
100.18, particularly when a facility publicly makes untrue, deceptive,
or fraudulent representations about the nature and extent of the care or
services it provides.52 Such claims may be
especially powerful when the representations being made are addressed to
a class of vulnerable consumers such as senior citizens.
Qui Tam Actions. In considering claims based upon
misrepresentation or fraud, one may consider filing a false claims case,
also known as a qui tam action. Such claims are brought
pursuant to the False Claims Act,53 which
allows monetary damages and court costs, if a person (or
"(1) knowingly presents, or causes to be presented, to an officer or
employee of the United States Government or a member of the Armed Forces
of the United States a false or fraudulent claim for payment or
"(2) knowingly makes, uses, or causes to be made or used a false
record or statement to get a false or fraudulent claim paid or approved
by the Government;
"(3) conspires to defraud the Government by getting a false or
fraudulent claim allowed or paid."54
Qui tam actions can be useful in the context of long-term
care facility litigation, particularly when the facility claims
reimbursement from Medicare or Medicaid for services that it has not
provided to residents.55 Special care
should be taken with qui tam actions due to considerable
procedural requirements and other complications associated with such
In addition to claims that may be asserted by residents or their
estates, family members may bring claims for their losses, such as loss
of consortium, society, or companionship, and wrongful death.56 Given the nature of abuse and neglect cases,
wrongful death claims tend to be the most common claims brought by
family members. Wrongful death claims in this context belong to the
survivors and under Wisconsin law are capped at $350,000 for the death
of an adult.57
Finally, the measure of damages in a long-term care facility case
differs substantially from the measure used in other types of injury or
wrongful death cases. In most injury cases, emphasis is placed upon
economic loss such as loss of past and future wages. Depending on
factors such as the victim's earnings and life expectancy, such damages
can be substantial. Generally, these types of economic damages are
unavailable in long-term care facility cases because the victim is
incapable of working.
For the most part, all other damages typically associated with
personal injury cases apply to long-term care facility cases. Residents
or their estates can recover damages for past and future medical bills,
funeral expenses, past and future pain and suffering, and punitive
damages. However, long-term care facility cases are different than many
other injury or wrongful death cases in that damages are driven largely
by bad corporate conduct involving such actions as failure to staff
properly, train appropriately, and supervise actively. Knowledge of the
law, awareness of the warning signs of abuse and neglect, and a basic
understanding of the availability of civil claims and remedies should
help Wisconsin lawyers, regardless of their practice areas, better
represent our vulnerable elderly citizens.
1Throughout this article the phrase
"long-term care facilities" is used as an all-encompassing label to
describe facilities that provide medical and nonmedical care to
individuals who cannot live independently, including residents of
nursing homes and community-based residential facilities. See
Eric M. Carlson, Long Term Care Advocacy, 103, LexisNexis
2See, e.g., 42 C.F.R.
§ 483.13(b) ("The resident has the right to be free from verbal,
sexual, physical, and mental abuse, corporal punishment, and involuntary
342 U.S.C. §§ 1395i-3
(Medicare), 1396r (Medicaid).
442 U.S.C. §
542 U.S.C. § 1395i-3(c).
642 C.F.R. § 483.10.
742 C.F.R. §
842 C.F.R. §
942 C.F.R. § 483.10(d)
1042 C.F.R. § 483.25.
1142 C.F.R. § 483.25(a).
1242 C.F.R. § 483.25(c).
1342 C.F.R. § 483.25(f).
1442 C.F.R. § 483.25(j).
1542 C.F.R. § 483.25(i).
1642 C.F.R. § 483.25(m).
17Wis. Stat. §§
50.01-.14, .61; Wis. Admin. Code ch. HFS 132, 134, 94.
18Wis. Stat. § 50.09.
19Wis. Admin. Code § HFS
20Wis. Admin. Code § HFS
21Wis. Admin. Code § HFS
22Wis. Stat. §§
23Wis. Admin. Code ch. HFS 83,
24Wis. Admin. Code § HFS
25Wis. Admin. Code § HFS
26Wis. Admin. Code ch. HFS
2742 C.F.R. § 483.30 sets
forth staffing requirements for nursing facilities.
National Nursing Home Survey: 1999 Summary, Data
29See also 42 C.F.R. part 483.35,
which provides additional standards and information regarding dietary
30Nancy Collins & Victoria
Castellanos, "Nutrition and Hydration," in Medical Legal Aspects of
Long-Term Care 125 (Jeffrey M. Levine ed., Lawyers & Judges
Pub. Co. 2003) (citing David R. Thomas, Wendy Ashmen, John E. Morley,
William J. Evans, & Council for Nutritional Strategies in Long-Term
Care, "Nutritional Management in Long-Term Care: Development of a
Clinical Guideline," 55A J. Gerontology, M725 (2000)).
3142 C.F.R. § 483.35(b).
3242 C.F.R. § 483.70
provides that: "The facility must be designed, constructed, equipped,
and maintained to protect the health and safety of residents, personnel,
and the public."
33See generally 42
C.F.R. § 483.20.
34See generally 42
C.F.R. § 483.30.
3542 C.F.R. §
36See also 42 U.S.C.
§§ 1396r(c)(1)(A)(ii), 1395i-3(c)(1)(A)(ii).
37Suzanne Frederick, "Pain and
Suffering in the Elderly Population," in Medical Legal Aspects of
Pain and Suffering 299 (Patricia W. Iyer ed., Lawyers & Judges
Pub. Co. 2003).
38Beth N. Rom-Rymer,
"Demonstrating Trauma: Effects of Sexual Abuse on the Elderly," in
Nursing Home Litigation: Pretrial Practice and Trials 37 (Ruben
Krisztal ed., Lawyers & Judges Pub. Co. 2d ed. 2003).
39"Wandering," in the
Encyclopedia of Elder Care 681 (Mathy D. Mezey & Mary Ann
Mattson eds., 2001).
40See, e.g., 42 C.F.R.
§§ 483.25, .20, .12, .13, .30, .75, .70.
4142 C.F.R. § 483.12.
4242 C.F.R. § 483.25.
43See generally Wis.
Jury Instructions Civil 1005.
Locicero v. Interpace Corp., 83 Wis. 2d 876, 266 N.W.2d 423
(1978); Totsky v. Riteway Bus Serv. Inc., 233 Wis. 2d 371, 607
N.W.2d 637 (2000); Walker v. Bignell, 100 Wis. 2d 256, 301
N.W.2d 447 (1981).
45See generally St.
Clair v. McDonnell, 32 Wis. 2d 469, 145 N.W.2d 773 (1966).
Nordeen v. Hammerlund, 132 Wis. 2d 164, 389 N.W.2d 828 (Ct.
App. 1986); Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567
(1977); Larsen v. Wisconsin Power & Light, 120 Wis. 2d 508,
355 N.W.2d 557 (Ct. App. 1984); James v. Heintz, 165 Wis. 2d
572, 478 N.W.2d 31 (Ct. App. 1991).
47See generally Wis.
Jury Instructions Civil 1900-1911.
4842 C.F.R. § 483.30.
49Wis. Admin. Code § HFS
50Wis. Admin. Code § HFS
51See generally Wis.
Jury Instructions Civil 2400-2404.
52See Wis. Jury
Instructions Civil 2418.
5331 U.S.C. §§
5431 U.S.C. §
Weinberger, 508 F.2d 43, 53-54 (5th Cir. 1975). See also
United States v. Jacobson, 467 F. Supp. 507 (S.D.N.Y.
56Wis. Stat. § 895.04.
57Wis. Stat. § 895.04(4)