The law protects senior citizens in residential facilities. There is a Federal Law protecting them as well as New York State Law.
Under Federal Law, 42 CFR 483.25, a resident of a long term care facility or a nursing homes, see, 42 CFR 415.12, must be properly cared for. This includes all activities for daily living. If a resident cannot groom himself/herself, he or she must be provided with appropriate help.
The facility must ensure that the resident does not develop bedsores from not being moved in the bed and should the resident develop a bedsore, the patient must be provided with proper treatment to prevent infection and to prevent the sores from spreading and getting worse.
The facility must ensure that the facility is safe and free of accidental hazards and that each resident receives appropriate supervision and assistance.
Each resident is also entitled to an appropriate diet and nutrition, which includes fluids as necessary. A resident must be given proper eyeglasses and hearing aids as needed.
The facility must ensure that proper medication is given and that there are no medical errors.
For each resident, the medical records must document what treatment the resident is being given, and the resident’s legal representative.
Medicare has put hospitals and nursing homes on notice that if they make certain mistakes which result in additional hospital stays; Medicare will not pay for them. These are called “never errors,” provided under the Deficit Reduction Act of 2005. Under this Act, Medicare will not pay if an object is left inside a patient during surgery for the additional hospital stay, for a patient who receives the wrong type of blood in a transfusion; for a patient who acquires bedsores, or other hospital infections, as well as if the patient is permitted to fall because of inadequate supervision by hospital staff.
New York State has its own set of regulations under the Public Health Law: for hospitals, §2803c-, for nursing homes §2801-d.
With respect to nursing homes or residential health care facilities, the law is particularly strict. If a patient suffers any damages in a facility because of a failure to treat the patient properly, a private lawsuit may be brought to recover all damages.
In an action brought to recover damages the patient would be entitled to keep any recovery and this is not to be counted for the purpose of deciding whether a patient is eligible for additional medical assistance. The law also provides that if the plaintiff is successful, the nursing home has to pay the plaintiff’s reasonable legal fees.
If a nursing home tries to get a patient to sign a form giving up these rights that form is without legal effect.
If you or a loved one were injured and are in need of legal assistance, call Jaroslawicz & Jaros at 212-227-2780, or toll free in New York 800-269-2780, or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call to ensure that you do not waive your right to compensation. Or you can email us at [email protected].
By David Jaroslawicz
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