Medical Malpractice, Nursing Home Abuse & Medical Privacy Litigation
As seniors age and become more vulnerable, they may need help to preserve their quality of life. Advances in medicine have made it more likely for people to live long enough to enter a nursing home or assisted living facility. After spending a lifetime working and taking care of their families, our elders deserve legal protection. Additionally, patients deserve to be treated with the utmost standard of care. When doctors or other health care physicians breach that standard of care, patients can suffer injuries or even death.
At Anchor Legal Group, PLLC, we are committed to seeing that all patients are treated with the dignity and respect called for under federal and state law. We are prepared to provide guidance to families seeking assistance in medical malpractice and nursing home abuse matters. A lawyer can help clients with legal problems that demand immediate attention, including:
- Nursing home abuse. If family members suspect that their loved one in long-term care is being neglected or abused, they should contact a lawyer as soon as possible.
- Medical malpractice. A lawyer can help a family or a patient if they suspect their medical provider is not providing sufficient medical treatments.
- Medical Privacy Litigation. If a patient believes their confidential medical records were improperly disclosed, they should speak to a lawyer about legal remedies.
What Qualifies as a Medical Malpractice Case?
A medical malpractice case can be filed against a health care provider who fails to comply with the general standard of care. A health care provider can be a doctor, nurse, or pharmacist. Virginia law defines the standard of care as a level of treatment most doctors would perform under similar circumstances. The mistreatment of a patient can lead to permanent injuries or sometimes death.
When filing a medical malpractice case, the victim or their family can recoup some of the financial losses they suffered because of the actions of the negligent caregiver. However, Virginia imposes a cap on damages depending on when the medical malpractice took place. If the malpractice occurred between July 1, 2008 and June 30, 2012, the plaintiff could recover up to $2 million. Since July 1, 2012, the maximum recoverable amount increases by $50,000 per year until the medical malpractice cap reaches $3 million on July 1, 2031. The commonwealth allows for punitive damages, however, they cannot exceed the overall cap.
What Do I Need to Prove My Medical Malpractice Case?
The burden of proof is on the person accusing the caregiver of failing to follow the standard of care. In Virginia, the plaintiff must prove the following to win their case:
- What the standard of care was for the caregiver to follow.
- That the caregiver failed to comply with that standard of care.
- The patient either died or suffered significant injuries as a direct result of that negligent care.
- The specifical injuries that the patient sustained.
It is vital keep as much documentation as possible about the incident. It will also benefit the plaintiff to chronicle the events, any problems after the treatment, and the timing of those problems.
How Much Time Do I Have to File a Medical Malpractice Case?
A victim has two years to file a medical malpractice case from the time of the malpractice. However, the laws of Virginia provide for flexibility on that timeline, depending on the circumstances. For instance, if the victim died due to the malpractice, the family has two years from the day the victim died.
The circumstances are different if an employee of the Commonwealth of Virginia, such as a doctor working for the University of Virginia or other state school, is suspected of medical malpractice. In that situation, a claim must be filed under the Virginia Tort Claims Act. In those actions, the plaintiff has one year from the time of the incident to notify the commonwealth of their intention.
The two-year timeframe can be extended under certain conditions. The first involves the continuing treatment rule. If a patient is undergoing treatments for the same condition over an extended period, the two-year timeline begins at the conclusion of those treatments. Regarding the other condition, if a foreign object was left in a person following surgery, the plaintiff has two years from the date of the injury and one year from the date they discovered the object inside them.
What Should I Do if My Medical Records were Improperly Disclosed?
The Health Insurance Portability and Accountability Act (HIPAA) contains regulations regarding how health care entities treat patients’ medical privacy rights. A medical professional has a duty to safeguard a patient’s medical information. Except under specific limited circumstances, a health care provider is not permitted to release a patient’s medical information without legal authorization. Violation of this duty may cause harm to a patient, and legal options are available.
A patient may discover that their medical privacy rights were violated. Under federal law, a person cannot file a direct HIPAA lawsuit; however, a victim can sue a specific health care provider or professional for damages involving medical privacy violations. It is important to note that medical privacy litigation centers on the violation of a patient’s authorization to disclose medical records or other medical information to specific third parties. A health care entity is not permitted to release a person’s protected medical information without their authorization. A medical privacy lawyer will be able to analyze the facts of the case and decide whether the patient’s protected medical information was improperly disclosed.
Am I Eligible to Pursue a Medical Privacy Lawsuit?
A health care provider owes a duty to the patient not to disclose information gained from the patient during the course of treatment without the patient’s authorization. A violation of this duty gives rise to a unique tort action first recognized by the Supreme Court of Virginia in the case of Fairfax Hospital v. Curtis, 254 Va. 437, 442 (Va. 1997). In recognizing this relatively new cause of action, the Supreme Court of Virginia held that the plaintiff could recover emotional distress damages for this tort without physical harm or wanton and willful conduct by the defendant, which is rarely permissible in Virginia.
The Court also found that a patient whose intimate personal medical information was wrongfully disseminated to third parties will experience some degree of humiliation, embarrassment, and hurt, so there is no logical reason to refuse recovery of emotional distress damages.
In determining whether to pursue a medical privacy claim on behalf of a patient, a fact-specific analysis that largely centers on what type of medical issues were disclosed and to whom will determine whether to move forward with the case. If a patient wishes to take legal action, a lawsuit for the unauthorized disclosure of medical information may be filed.
What is the Cost of Long-Term Care in Virginia?
Paying for the cost of long-term care is a key concern when it comes to maintaining quality of life. In Virginia, the price of living in a nursing home typically ranges from $3,500 to $12,000 per month. It is easy to see that just a few months of care can consume a lifetime of hard-earned savings. Healthy people often neglect to plan ahead for long-term care, although insurance companies estimate that 70 percent of Americans will enter a nursing home at some point in their lives. As time goes on, more families will need to confront these costs. The number of Americans over the age of 65 has increased by more than a third during the past decade alone, according to the U.S. Census Bureau.
Does Medicaid Pay for Nursing Home Care in Virginia?
There are several different types of Medicaid programs that are available to pay for the cost of long-term care for Virginia residents. However, each program has a different set of eligibility requirements, and therefore, not all senior citizens may be able to take advantage of Medicaid funds. Eligibility requirements include the following:
Assets: If a person’s income or assets exceed a certain limit, they may not be eligible for Medicaid assistance. Assets may include stocks, bonds, savings accounts, checking accounts, and real estate.
Income: In addition to wages, income may include pensions, Social Security, Social Security Disability Income (SSDI), stock dividends, IRA withdrawals, and alimony payments.
Marital Status: If a person is married, their eligibility may be affected by their spouse’s income and assets, depending upon the type of Medicaid program to which they are applying. Some Medicaid programs in Virginia will pay only for institutional or nursing home costs; others cover home and community-based services. Medicaid for blind and disabled persons are typically guaranteed for home or adult day care, provided the person meets eligibility requirements.
Functional ability of the person applying: Applying for Medicaid can be complicated. However, Virginia has a five-year look-back period regarding assets. That means that stocks, bonds, real estate, or other assets sold for less than their value in the last five years may not be exempt from the asset limit, thereby making the person ineligible for Medicaid funds. At the same time, the laws in Virginia offer other pathways for persons over age 65 to qualify for Medicaid funds, even if they do not meet the asset and income tests. Medicaid planning can help seniors who are over-income or over-asset pursue avenues for Medicaid eligibility.
Nursing Home Abuse
Unfortunately, too many nursing home residents in this country are subjected to neglect and abuse. Types of abuse include the following:
- Emotional. This may include being subjected to harassment, threats, or insults.
- Hygienic. A lack of clean bedclothes may indicate the resident is not obtaining help going to the bathroom.
- Medical. Is the resident receiving all their medications on time?
- Nutritional. Weight loss and other medical problems may be symptoms of malnutrition.
- Physical. This may include the use of restraints, as well as inflicting bodily harm.
- Sexual. Symptoms of sexually transmitted diseases may indicate past sexual assault.
Neglect often happens because long-term care facilities are short-staffed. In fact, recent studies have shown that approximately 70 percent of nursing homes are less than fully staffed. In other cases, abuse may be willful and even violent.
The Nursing Home Reform Act
In 1987, Congress passed the Nursing Home Reform Act, which includes a Bill of Rights that seeks to ensure that each resident receives a guaranteed standard of care, which protects them from abuse, isolation, and improper medical treatment. This law applies to all residents in any Medicare or Medicaid-certified nursing home. It is the responsibility of the nursing home to inform each resident of their rights in writing when they are admitted, in a language they can understand. These rights include the following:
- Freedom from discrimination
- Freedom from abuse and neglect
- The ability to exercise their rights as a U.S. citizen
- Access to proper medical care
- Being treated with respect
- Freedom from restraints when not medically necessary
- Protection against involuntary transfer or discharge
- The ability to participate in activities and form resident groups
- Freedom to spend time with visitors
- Ability to manage their own money
- Access to information on services and fees
- Privacy and property
- Freedom to file complaints without retribution
Despite these laws, abuse and neglect is still widespread in U.S. nursing homes.
Signs of Nursing Home Abuse
Family members of nursing home residents should be alert for signs of all types of abuse, which may include the following:
- Agitation
- Bedsores
- Broken bones or fractures
- Broken eyeglasses
- Confusion
- Cracked lips, or other signs of dehydration
- Inability to get out of bed
- Infections
- Weight loss
Whether a staff member willfully inflicts harm or intentionally neglects a resident’s cries for food, medicine, or assistance, it is considered abuse. Bed sores, in particular, are one of the most common symptoms of nursing home neglect. According to the Centers for Disease Control and Prevention, more than 10 percent of nursing home residents in the U.S. developed bedsores at one time or another. This painful condition develops when nursing home residents do not get the help they need to turn over in bed, sit in a chair, or get up and walk.
If abuse or neglect is suspected, family members should document the problem and report it right away to the nursing home administrator. Nurses and doctors should also be alerted. The next step is to seek the services of a qualified lawyer to ensure that abuse or neglect does not happen again, and perpetrators are held accountable.
Fraud
According to the Federal Bureau of Investigation (FBI), millions of elderly Americans fall victim to fraud each year. Types of scams identified by the FBI include the following:
- Romance. Scammers may use social media or dating websites to exploit a lonely senior’s desire for companionship.
- Tech support. Criminals may gain remote access to victims’ computers and personal information by posing as tech support representatives.
- Government impersonation. Scammers pose as government employees and threaten to arrest victims unless they send them money.
- Charities. Criminals claim to work for legitimate charitable organizations to gain victims’ trust.
- Home repair. Scammers charge homeowners in advance for repairs that are never made.
- Family/Caregivers: Relatives or caregivers gain seniors’ trust and then ask for or steal money.
Elders who realize they are victims of a scam may be reluctant to tell anyone for fear of embarrassment. They may think that others will lose confidence in their ability to manage their own affairs.
