Nursing Home Liability – What the Elderly and Their Children Need to Know (Part One)

Bogoroch & Associates LLP strongly believes that victims of Nursing Home Negligence are entitled to access to justice.

If deciding to place a loved one, or yourself, in a nursing home is not tricky enough already, the real-life horror stories reported in the media on the neglect, abuse, and even killing of helpless elderly residents living in Canadian long-term care facilities only add to the emotional stress involved. Consider the following examples:

• On November 9, 2013, an 87-year-old Toronto nursing home resident was found dead in his room with apparent injuries to his head. His 81-year-old roommate was charged with second-degree murder.[1]
• On March 13, 2013, a 72-year-old woman living in Toronto long-term care home was beaten to death, and a 91-year-old female resident was brutally assaulted, both apparently with a cane. A 72-year-old male resident was charged with second-degree murder and aggravated assault.[2] On previous occasions, the suspect had allegedly punched another resident in the face and was involved in an altercation that resulted in a resident falling and fracturing a hip.[3]
• On February 18, 2012, a 68-year-old man sitting in his wheelchair at a Toronto nursing home was hit by another resident violently and repeatedly on his head with a wooden activity board. The attack was so brutal that the victim was found drenched in his blood, which was also spattered over the floor and ceiling. The elderly female suspect, who was seen washing blood from her hands, was known by staff to have had previous aggressive episodes.[4]
• On April 4, 2011, a 71-year-old woman was sexually assaulted in her bed at a Toronto long-term care home. A staff member discovered a male nurse in the victim’s room, standing behind her exposed buttocks with his pants down. He pleaded guilty to sexual assault and was sentenced to 12 months imprisonment. [5]
• In May 2004, a 96-year-old woman entered her room at a Toronto nursing home to find a fellow resident in her bed. When she told him to leave, he began beating her and knocked her down. She died of her injuries four days after the attack. A 79-year-old male resident was charged with second-degree murder.[6]
• On June 9, 2001, two Toronto nursing home residents, aged 71 and 83, died from blunt force injuries to their heads after being bludgeoned with a wheelchair footrest in their room by another male resident. An 89-year-old man who was also attacked survived.[7]

These are just some of the cases reported in the media. But there are more incidents we do not even hear about.

For example, the Ontario Geriatric and Long-Term Care Review Committee that examined some of the deaths in 2012 of older people in nursing homes concluded that two women, aged 87 and 97, died as a consequence of fractures after being pushed by other residents; an 88-year-old woman died from a hip injury after being attacked by another resident; a 71-year-old woman died of complications after breaking an arm and leg while being transferred improperly from a bed to a chair, and a 75-year-old man died when he slipped down in his wheelchair and got his neck caught in a type of seatbelt the nursing home was not allowed to use.[8] The committee’s reports from other years describe similar occurrences.

A series of 1,500 government inspection reports from 2010 and 2011 obtained by the Toronto Star detailed a wide range of incidents of abuse and neglect in nursing homes, including a male resident sexually assaulting an elderly female resident; a female resident was dying after suffering for days with an untreated broken leg; a staff member who “cuffed” a resident on the head; a home rationing diapers so strictly that staff wrapped residents in towels and garbage bags to keep their beds from getting wet; residents being left with untreated bedsores, and residents not being given enough to eat.[9]

Various statistical analyses of nursing home injuries and deaths compiled over recent years only seem to underline the situation’s gravity.

A 2013 investigation by CTV television’s W5 newsmagazine found at least 60 nursing home homicides across Canada between 2001 and 2013. A death is considered homicide when one person’s actions result in the death of another.

In Ontario, there were 25 homicides in long-term care facilities between 2001 and 2011. The most common cause of nursing home homicide was a push from one resident that resulted in a fatal fall for another, W5 reported.[10]

W5’s investigation also found that more than 10,000 Canadians in nursing homes suffer abuse at the hands of their fellow residents each year.[11]

Ontario’s Long-Term Care Task Force on Resident Care and Safety, established in 2011 by the province’s nursing homes and groups representing residents, their families, and advocacy organizations, stated in a 2012 report that 45 percent of nursing home residents exhibit some aggressive behavior.[12]

In the same report, the task force cited 3,216 critical incidents relating directly to abuse and neglect in Ontario’s 634 long-term care homes in 2011 (critical incidents are occurrences that a home must report to the Ministry of Health and Long-Term Care, such as a fire, unexpected death, missing resident, or injury that results in a person being taken to hospital).

Of those 3,216 incidents, 2,773 were categorized as “abuse/neglect,” another 207 involved improper or incompetent treatment of a resident resulting in harm or risk, 154 were reports of misuse or misappropriation of a resident’s money, and 82 were reports of unlawful conduct that resulted in harm or risk of harm to the resident.[13]

When an incident of negligence or abuse results in severe injury or death, devastated residents and families often do not know what to do in the face of an already overwhelming situation. But it may be essential to act quickly.

“As soon as an incident occurs, a lawyer should be consulted and the home put on notice of a claim,” says Richard Bogoroch, managing partner at Bogoroch & Associates LLP. “Nursing and retirement homes must prepare incident reports, and the first step is to request a copy of the report and identify the witnesses to the incident.” Sometimes, issues involving possible negligence can be less noticeable than assault or theft. Falls, for example, are a significant peril facing the approximately 77,600 seniors who live in Ontario nursing homes.

According to a 2005 Public Health Agency of Canada report on seniors’ falls, approximately 50 percent of all long-term care residents aged 65 or over fall each year, and 40 percent of that fall twice or more each year. About 10 percent of the falls result in serious injury, with up to 5 percent resulting in bone fractures.[14]

“If a resident suffers serious injury or dies as a result of a fall, the issue is whether the nursing home breached Section 3 of The Occupiers’ Liability Act,” says Mr. Bogoroch. “Did the home fail in its duty to keep the resident reasonably safe while on the premises? If the resident fell because he or she slipped on juice, water, or other liquid that was not cleaned up within a reasonable period, the home may very well be liable for the resident’s injuries, damages, and losses. Did the home have a reasonable system of inspection and maintenance? If so, did they comply with their procedures?”

Section 3 of The Occupiers’ Liability Act lays out the obligation, of the nursing home, in this case, to do what is reasonable to ensure the safety of residents: “An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” [15]

The Public Health Agency of Canada report notes that “Patients taking psychotropic medications, such as paroxetine (Paxil) and sertraline (Zoloft) prescribed for depression, appear to have about a two-fold increased risk of falls and fractures, compared with individuals not taking these drugs,” [16] and that benzodiazepines such as alprazolam (Xanax) and diazepam (Valium) often prescribed for sleep problems and anxiety are also associated with falls and hip fractures.

A report commissioned by the Ontario Ministry of Health and Long-Term Care in April 2014 found that 45 percent of Ontario nursing home residents aged 65 to 79 were taking an antipsychotic drug such as olanzapine quetiapine, and 30 percent were taking sedatives such as diazepam or lorazepam. Health Canada does not approve such antipsychotic medications for use by older adults who have dementia. Their effectiveness for dealing with the hallucinations, delusions, and wandering sometimes associated with dementia have also been called into doubt.[17]

“Despite evidence suggesting high rates of use of antipsychotic medication among patients in LTCHs (long-term care homes), there is substantial evidence to suggest that these medications may be associated with significant adverse effects,” states a study published in the September 2011 edition of the Canadian Geriatrics Journal. “Such effects may include falls, confusion, and, in the case of atypical antipsychotic medications, increased mortality. Furthermore, the benefits of these medications have not been clear.” [18]

Despite the sobering statistics and frightening stories of abuse and neglect, families with frail elderly members often find themselves stuck between the proverbial rock and hard place. Relatives who might provide care for a fragile senior may live too far away or may have to work, and very few families have the money to hire a caregiver for more than a few hours a week. And sometimes, seniors have dementia and multiple health issues so severe family caregivers are no longer able to cope.

Eventually, there is often no choice. Then it becomes a matter of finding the best nursing home available and arming yourself with the knowledge required to make sure your loved one gets the best care possible there and being prepared to use it. If a serious injury does occur that appears to be the result of abuse or neglect, a legal action might be the best way to protect your family member’s interests.

“The purpose of the lawsuit is to enable the injured victim to recover damages for his or her pain and suffering and additional care costs,” explains Mr. Bogoroch. “As well, it is the basis upon which the nursing home is held accountable for their negligence and other breaches.”

The law covering Ontario nursing homes is extensive and complicated. You can read more about it in our next blog when we will look at the rights of nursing home residents and their families and long-term care facilities’ legal obligations.

Bogoroch & Associates LLP has extensive experience representing families whose loved ones were injured because of the nursing/retirement home’s negligence.