Elder abuse, nursing home abuse, and nursing home accidents are becoming common terms as the Canadian population ages and the number of residents entering nursing homes increases. While many nursing homes do provide excellent care, far too many do not. Many nursing home and long-term care patients suffer from nursing home abuse, physical and emotional abuse, financial exploitation and serious neglect.
An experienced Hamilton nursing home abuse lawyer from our firm can help you and your family if your loved one has been injured in a nursing home or is being unreasonably neglected. Everything starts with the investigation. Our firm will know how to handle your case no matter how your elderly relative was hurt or taken advantage of.
Statistics Canada (2010) tells us that seniors are the fastest-growing age group in Canada. Elder abuse is a general term used to describe damaging acts toward vulnerable and elderly citizens and is fast becoming a common term as much of our population ages and enters residential facilities. Elder abuse and nursing home negligence can take place in many different ways – including physical, psychological or emotional abuse, neglect, sexual assault, and financial exploitation.
The National Seniors Council tells us that up to 10% of elder adults in Canada experience some type of abuse. The problem that we face, however, is that incidents of elder abuse are difficult to gauge. This can be due to many factors, such as under-reporting, the lack of support and loneliness of vulnerable seniors, confusion about what elder abuse really is, and a general lack of awareness, among other things.
Elder abuse in Ontario can take many forms – most of which include financial exploitation or intentional infliction of abuse and neglect. Intentional forms of abuse include emotional abuse, physical, psychological, or sexual abuse and assault. The abuse can also take the place of unreasonable confinement, intimidation, and punishment.
Nursing home neglect is also categorized by the failure (whether intentional or not) to provide an elderly person with the care and services necessary to ensure they are free from pain and harm. Neglect can result in terrible consequences, ranging from:
Identifying nursing home abuse can be a challenging process, especially when a resident is unable to speak for themselves, and there are no other witnesses to the abuse.
It is not always easy to pinpoint if and how nursing home abuse or neglect has occurred, but there are telltale signs and symptoms of abuse, such as sudden behavioural changes and/or unexplained injuries in elderly relatives. Indicators of physical abuse and neglect can include sudden unexplained weight loss, emotional upset, agitation, your loved one is seemingly withdrawn and non-communicative, confused, disoriented, defensive and the sudden hesitation to talk openly.
Most elder abuse occurs in nursing homes, but there are many cases involving caregiver abuse that take place where the senior lives. This type of emotional pain can be caused through intimidation and threats, humiliation, ridicule, ignoring an elderly person’s needs, as well as isolating and/or terrorizing the elderly person.
Other warning signs that your loved one is being abused can include:
Nursing home neglect often occurs with the neglect of a patient’s basic needs, medical neglect, emotional or social neglect, and hygienic neglect. If you think your loved one is being neglected – here are some of the symptoms that you should watch out for:
Please keep in mind that just because there are no shocking or obvious signs, doesn’t mean that financial exploitation isn’t happening. However, you may consider the following signs to get a better picture of what may be happening and whether or not your loved one is suffering from financial abuse and exploitation:
When you or a loved one experiences nursing home abuse, significant and widely varied costs can result. Staying in a nursing home or other assisted living facility can cost a lot of money on its own, without any level of abuse, neglect, or theft. However, when a resident suffers abuse in a nursing home setting, the costs can begin to add up to significant amounts.
Physical abuse may necessitate medical treatment for physical injuries that would otherwise by unnecessary. It can also lead to psychological conditions that may require treatment and medication.
Elder abuse can take many forms in nursing homes, so you must look out for it. Identifying nursing home abuse is difficult in some populations of older adults, underlining the importance of checking up on your loved ones.
If you are a nursing home resident, be open and communicative with your friends, family, and nursing home administrators to ensure that employees do not have an opportunity to abuse you. If they already engage in abusive conduct, the facility should know so it can take the necessary steps to stop it.
Medical care for older adults is often significantly more extensive than for younger individuals. Older persons have more medical needs and treatment necessities from aging, and care can grow substantially in price. This can drive up the costs of nursing home residency in many cases.
Keeping up with the correct medical treatments for some older adults is already difficult, and nursing home abuse can further increase these expenses. Whether mental or physical, abuse has costs that are not only physical or mental but also financial. Treatment for physical injuries or mental health issues can cost a lot of money, and were it not for the abuse, such treatment would be unnecessary.
Medical treatment can also be uncomfortable and painful for nursing home residents. They might have a long recovery time from abuse-related injuries that hinder their lives. Reach out to an elder law lawyer in your area to determine the value of your case and how to best go about recovering your damages.
You can recover compensation for pain and suffering in the courts when it stems from another party’s negligent or wrongful acts. If you or a loved one suffered abuse in a nursing home environment, you may seek damages for the resulting pain and suffering.
Employees of a nursing home have a duty to those who live there—a duty of care that requires that they perform their work with the best interests of the older person in mind while complying with the law. They must uphold this duty to maintain the quality of care.
If someone suffers abuse, they can experience undue pain and suffering. An injury claim allows them to recover compensation for both physical and mental pain and suffering.
Pain and suffering commonly apply to emotional abuse cases. Emotional abuse, also called psychological abuse, includes saying hurtful words, threatening the patient, or ignoring the person. A particularly damaging form of emotional abuse can also include keeping the elderly person from seeing their family.
If you are in a nursing home and have experienced emotional abuse at the hands of the nursing home employees, you might be entitled to damages. If your loved one is in a nursing home, make sure to ask them how they feel in the nursing home. Are they heard? Do they get attention when they have something to say? Are they allowed to see their family and friends when they want to, and should they be allowed to? Questions like these can help you identify any instances of emotional abuse that might be happening for which you would not be able to see physical wounds or symptoms.
In some cases, punitive or exemplary damages might be available in nursing home abuse claims. Punitive damages are extra damages that aim to punish the wrongful party for engaging in reprehensible behaviour. If the abuse was egregious or the nursing home tried to cover up abuse and allowed it to continue, this might be a possibility. Reach out to a Hamilton nursing home abuse lawyer to determine what damages are available to you.
When residents of a nursing home suffer abuse, the physical trauma can lead to premature death. Further, the psychological and physical health of the older person may also deteriorate, adding further devastation to their lives, which can also lead to premature death. A wrongful death would not happen were it not for the behaviour of the liable party. Denying your loved one essential medical care or causing preventable injury can lead to wrongful death, which entitles the surviving family members to damages under the Family Law Act.
If you lost a loved one due to wrongful death, you can bring a lawsuit to recover damages on their behalf as though they were the party bringing the lawsuit. Damages for wrongful death can include punitive damages against the liable party, damages for the pain and suffering experienced by your loved one, damages to cover the cost of any additional medical treatment linked to the wrongful death, and more.
Whether you want to learn about damages for a loved one’s injuries or wrongful death, you should speak with a Hamilton nursing home abuse lawyer as soon as possible.
When someone suffers injuries due to an employee’s negligence, the employer is generally liable if the employee engaged in an activity that was part of the job. However, when intentional abuse occurs, the employer might avoid automatic liability because the employee was acting outside the role of their job and knowingly engaging in wrongful conduct, and so the perpetrator alone would be liable.
This can limit the amount of recovery and damages you can achieve, as a nursing home employee may not have access to sufficient resources to fully compensate your loved one.
A nursing home can still be liable if the facility’s management was negligent itself. For example, if a nursing home hires a person with a higher likelihood of abuse, like a history of assault or termination from other nursing homes for misconduct, you might hold the employer liable for negligent hiring.
An employer must perform the necessary background checks to determine whether a person is fit for the job. If a nursing home hires someone with red flags on their record, the employer can be liable for any actions that the employee engages in on the job, even if it is intentional abuse. Further, employers must exercise due care and diligence not only in hiring employees but also in their supervision.
Nursing homes are also responsible for supervising employees. Once they hire someone, they cannot simply let them act however they wish with residents.
Supervisors should:
When a nursing home fails to properly supervise and discipline employees, abuse victims can hold the facility liable.
Nursing homes have an obligation to their patients, and when abuse occurs, they are often liable. This can lead some dishonest nursing homes to try covering up abuses to avoid liability. They might try to cover up injuries through unofficial treatments that they do not document or deny the patient access to their friends and family so they cannot discuss the matter. This makes it even more critical that loved ones keep a close watch for signs of possible mistreatment.
Accidents do happen, and people do experience injuries from time to time, regardless of their age. However, when injuries happen more often than usual, there is cause for concern. If you or your loved one in a nursing home has injuries in varying states of healing, that means that injuries occurred at different times in different incidents. While a single injury will naturally happen on occasion, ongoing injuries can indicate a pattern of neglect or abuse that allows them to continue.
Claiming that injuries are “accidental” is a way for recordkeeping to overlook intentional abuse or accidents due to neglect. If you or your loved one needs medical treatment for an accidental injury, follow up and ask for more details. Is the nursing home doing anything to prevent such “accidents” in the future? When there is no policy in place to prevent an injury, it may require further investigation.
When the nursing home abuses residents, the only way you might hear about it is when they tell others. A significant form of elder abuse is interpersonal isolation. When you or your loved one can’t communicate with people outside of the nursing home or even the supervisor of the abusive party, they can’t easily escape.
Nursing home abuse can take on many forms, and to take proactive steps to end it, individuals must know about it. When nursing home employees abuse someone and prevent them from reporting the abuse, not only do they experience interpersonal isolation, but the abuse can also persist. If you visit a loved one in a nursing home, always raise concerns if the staff will not allow you to visit with them alone—or even at all.
One of the many ways that nursing home employees keep abuse under wraps is through a climate of fear. When residents receive threats of further physical or emotional abuse, if they report a violation or an injury, additional abuse is happening.
Preventing older persons from accurately communicating their feelings and experiences is a way in which injuries and violations remain secret in nursing homes. The use of emotional or physical force, or the threat thereof, is abusive and can prevent older persons from receiving the medical attention and legal help they need.
Quickly and comprehensively attending to the injuries of nursing home residents can make the difference between a partial and total recovery, underlining the importance of prompt medical care. When a loved one does not receive prompt medical care for injuries, those injuries can worsen, and the long-term effects can increase.
A failure to provide essential needs like medicine, comfort, food, water, and other key elements for survival constitutes nursing home neglect. When an elder suffers neglect, nursing home employees acted negligently, and you can hold the facility responsible for any resulting losses or suffering of the resident.
When a nursing home resident suffers injuries from abuse and then does not get proper medical treatment, the situation becomes much worse. If a nursing home neglects you or a loved one and fails to attend to medical needs, reach out to our nursing home abuse lawyers in Hamilton for information and guidance on how you can protect your rights and gain access to necessary medical care.
How can you detect if your loved one has been sexually abused in a nursing home?
Within the elder abuse context, sexual abuse in nursing homes is a hidden problem because it too often goes undetected and under-reported. Often, residents who suffer strokes or other medical conditions which cause them to lose speech or motor skills, making it very difficult to report abuse. For example, cognitively impaired residents are often unable to describe assault events, their fears, or the feelings of helplessness they feel. Warning signs of sexual abuse of your loved one, as reported by various physicians and experts, can include[1]:
There is no doubt that a nursing home for seniors must care for its residents in such a manner and in such an environment as will promote the maintenance or enhancement of the quality of life of each resident who lives there. Most nursing homes have a duty to develop and implement written policies that prohibit mistreatment, neglect, abuse, and misappropriation of resident property.
Any written policies have to be effective and put into action. In the past, Courts have found that although facilities have had policies and procedures in place to prohibit sexual abuse, such policies were often not effective because of the lack of reporting by employees when the abuse occurred.
In Ontario, facilities are required to report all violations of patient and resident abuse, including mistreatment, neglect or abuse, including injuries of unknown source.
Nursing homes in Ontario can be vicariously liable for the actions of their employees – meaning they can be held responsible for the negligent actions of their employees. Nursing homes in Ontario can also be vicariously liable for the actions of other residents who sexually abuse a resident if the abuse can be proven.
Nursing homes in Ontario can also be vicariously liable for independent contractors’ negligence. Nursing homes should take special precautions to limit liability for physical harm caused to residents by contractors’ failure to exercise reasonable care and abuse of residents.
It’s important that everyone hired by a nursing home is properly screened for any type of history of violent or aggressive behaviour toward staff or other residents, inappropriate verbal communication, allegations or charges of inappropriate sexual behaviour, and, of course, criminal checks. If homes are not under negligence, it may be argued in the context of negligent hiring of employees and independent contractors by the nursing home.
Negligent hiring occurs when the employer fails to adequately evaluate a potential nursing home candidate who, after hire, injures a third party, such as an elderly resident. If the potential risk of harm to a third party could have been identified during a proper and thorough reference check, the employer nursing home may face liability for the third-party injury.
Nursing homes have a responsibility to provide a level of reasonable care to protect residents and provide them with a safe environment. If they do not, they can be found negligent and liable for damages.
In order to establish negligence against a nursing home, we, as your lawyers, must investigate whether or not a duty of care was owed to your loved one.
There’s no doubt that in a nursing home- resident relationship, nursing homes have a positive responsibility to provide residents with care and provide them with a safe environment. This means that nursing home facilities have a duty to take reasonable steps to prevent abusive acts.
Once a duty of care is determined, there must be a breach of that duty of care between the nursing home and your loved one in order for negligence to be found. A Court must then determine what the defendant nursing facility should have or could have done to protect the resident which is a question of fact.
Lastly, there must be injury or damage to the plaintiff resident in order to prove negligence. Injury can be in the form of physical injuries or mental suffering. Our Supreme Court has made it clear that expert evidence is not required to prove the mental injury. A judge or jury can still use other evidence to determine if the plaintiff has, in fact, suffered mental injury as a result of the negligent act – and such evidence is weighed on a balance of probabilities.
Often, sexual abuse of a nursing home resident is alleged to have been committed by other residents. In this type of situation, insurers or the Province commonly argue that the sexual relationship between residents was consensual. However, a problem occurs when the question of the capacity of residents becomes an issue.
For example, did your loved one have the capacity to consent to the nature of sexual conduct? Typically, consent is established with mere proof that the victim understood the sexual nature of the act and voluntarily decided to participate in the sexual conduct. However, people who are physically helpless, mentally incapacitated, suffered from a mental health issue or any other issue that rendered them temporarily or permanently incapable of making decisions will not be found to have provided consent to the sexual relationship.
The allegations of sexual abuse of a nursing home resident who suffers from Alzheimer’s disease can become quite complicated. There are over half a million Canadians and four million Americans living with Alzheimer’s disease. Alzheimer’s disease is divided into seven stages, and a person with Alzheimer’s disease suffers from a decline in cognitive and physical abilities throughout the seven stages.
In the seventh stage, individuals with Alzheimer’s lose the ability to speak and control movement.[2] Ontario Nursing homes should have implemented policies to protect residents from unwanted sexual contact. Therefore, negligence may be found if a facility has not followed its own policies and procedures or implemented correct written policies to protect the vulnerable class.
Similarly, dementia results in residents suffering from impaired memories and communication difficulties and are limited in their ability to make rational decisions. [3] Residents with dementia may, in fact, lack the legal capacity to consent to engage in sexual relations. If they do give consent, difficulties interpreting a resident’s true intentions arise given that residents with dementia often feel disorientated, suffer memory loss and have a limited ability to communicate feelings and concerns. This makes it difficult to determine whether or not a a resident is actually consented the sexual relations, or is being abused.
Ontario nursing homes are legally required to provide safe and nonabusive facilities to their residents. There’s no doubt that this will become more and more difficult as nursing homes will be forced to handle and accommodate baby boomers in the next several years.
However, and equally as important, nursing homes will also be forced to handle and accommodate the elderly’s consensual sex lives as more and more patients get admitted over the next several years. With the elderly comes diminished physical and mental capabilities, so where is the line drawn between consensual sexual activity while exercising one’s right to intimacy and nonconsensual sex due to an elderly resident’s inability to consent due to diminished capacity?
All in all, we do know that sexual abuse in nursing homes is the least detected, the least reported, and the least acknowledged type of abuse, making lawsuits alleging sexual abuse in a nursing home quite difficult. If your elderly loved one has been sexually abused in a nursing home – the best type of evidence, as difficult as it sounds, is video evidence.
Video evidence can prove not only nursing home sexual abuse but also physical abuse, emotional abuse, neglect, confinement, deprivation of medicine and food and the, non-interference with self-neglect and the failure to provide day-to-day needs. Consider when the CBC referred to nursing home footage in Ontario as a “horror movie”.
A nursing home resident died in hospital four days after breaking his hip in a nursing home. Baycrest nursing home reported that the man had fallen twice when video evidence showed nursing home employees shoving the elderly man to the ground and throwing a chair at him. In today’s day and age, one can easily buy small video cameras on Amazon.ca, such as this clock/video camera and record video footage of presumed abuse.
We always recommend trying your best to film the incident. Although this may be tremendously difficult to watch, there is no doubt that catching the abuse on video is the absolute surefire way to entitle your loved one and his or her family to compensation.
There are many different cameras that you can set up in your loved one’s home or nursing home room – such as the Nest Indoor security camera found here or another comparable small wireless camera which can be purchased inexpensively.
If you suspect that your loved one is being abused or neglected, please contact one of our Hamilton nursing home abuse lawyers. We understand that when you put a loved one in a nursing home, you trust that they will be cared for.
If you notice signs of sexual abuse, physical abuse, emotional abuse, overall neglect or financial exploitation please contact one our Hamilton Lawyers by completing a contact form of by calling 905-333-8888. We would be happy to provide your family with a free, no-obligation consultation.
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