San Jose Nursing Home Abuse and Neglect Attorney

Both federal and state laws guarantee that residents of long-term care facilities, including nursing homes, have certain rights regardless of circumstance. Unfortunately, nursing home residents and patients residing in other long-term care facilities aren’t always in a position to advocate for themselves. Some struggle with self-advocacy due to illness, advanced age, or disability. Others, especially those who have been mistreated, often fail to speak up about the harm they’ve suffered because they worry that the mistreatment will worsen if they voice their concerns and/or because they don’t want to “bother” their loved ones.

If you are the loved one of a long-term care facility resident, it is critical that you educate yourself about how to identify neglect, abuse, and exploitation. That way, if something ever seems “off” or “not right,” you’ll know that it is important to explore your legal options in a free consultation setting with our firm. Speaking with our knowledgeable and compassionate legal team will not obligate you to report your concerns, nor will it obligate you to take legal action. Consultations are simply designed to ensure that you understand your rights (and your loved one’s rights) under the law and that you have the ability to ask any question and/or voice any concern that may be weighing on you. Once you receive personalized legal guidance regarding your situation, you’ll be empowered to make informed decisions on your loved one’s behalf.

Too often, family members and friends who are concerned about their loved ones residing in long-term care facilities fail to speak with an attorney about their suspicions because they fear getting innocents in trouble, “rocking the boat,” or appearing to be “dramatic.” It is critical that you understand that in speaking up, you may not only be saving your loved one from additional mistreatment, you may be preventing the mistreatment of others as well. Speaking with an attorney about your concerns isn’t dramatic behavior. It is courageous, loving, and proactive behavior that is deserving of the utmost respect.

Trustworthy Representation for Victims of Nursing Home Abuse and Neglect

The rates of abuse and neglect associated with long-term care facilities in the U.S. indicates that residents of these facilities are some of the nation’s most vulnerable citizens. As a result, if you suspect that your loved one is being subjected to abuse, neglect, or exploitation, you’ll need a tenacious, trustworthy, focused, and knowledgeable advocate on your family’s side. 

We extend the opportunity to attend a free consultation at our firm to anyone interested in learning about their rights – and their loved one’s rights – under the law.

Our team believes that anyone who may be subjected to mistreatment deserves protection, care, consideration, and justice. As a result, if you choose to schedule a no-cost case evaluation with our experienced and reputable legal team, you’ll be able to trust that you’re speaking with passionate advocates intent on ensuring that, if your loved one is being harmed, any mistreatment is halted and those responsible are held accountable.

Residents’ Rights Under the Law

Most residents of long-term care facilities are safeguarded by laws that govern the safety of patients who rely on Medicare. Any facility that participates in the Medicare program – a classification that includes the vast majority of long-term care facilities – is bound to honor the rights of residents as codified by federal law. Some of these rights include:

  • The right to exercise all enumerated rights and voice grievances both to facility staff and outside representatives, free from restraint, interference, coercion, discrimination, and reprisal (42 CFR §483.10(j))
  • The right to remain free from verbal, sexual, physical, and mental abuse, corporal punishment, involuntary seclusion, neglect, misappropriation of resident property and exploitation (42 CFR §483.12))
  • The right to remain free from any physical or chemical restraints, imposed for purposes of discipline or staff convenience, which are not required to treat the resident’s medical symptoms (42 CFR §483.12(a)(2))
  • The right to make choices about aspects of life in the facility significant to the resident. (42 CFR §483.10(f)(2)

Additionally, all long-term care facilities in California are bound to honor residents’ rights as codified by state law. Some of these rights include:

  • The right to communicate with persons of one’s choice inside or outside of the facility. 22 CCR §72527(a)(14))
  • The right to associate privately – and to make and receive phone calls in private – with persons of resident’s choice, inside or outside the facility. (42 CFR §483.10(g)(2) 22 CCR §72527(a)(14))

Even those patients in private facilities that do not participate in the Medicare program are bound by state laws that similarly prohibit the abuse, neglect, and exploitation of residents. Our client-focused legal team can explain how these rights apply to your loved one’s situation and how to go about enforcing these rights when we meet with you in a risk-free, no-cost consultation setting.

It isn’t always easy to know if your loved one is being abused, neglected, or exploited. However, if your loved one is suddenly withdrawn, if your access to your loved one is suddenly limited, if they have strange marks on their bodies, or if anything else seems “off” about their behavior and the care they’re receiving, it’s time to speak with a legal professional who has experience handling abuse, neglect, and exploitation cases.

What is Abuse?
Abuse, which is an “active” form of mistreatment directed at an individual, can take many forms. The most common forms of abuse that residents of long-term care facilities experience include physical, sexual, and emotional abuse. Abuse is an intentional act that may result in injury and/or mental and emotional trauma. Violent behavior, threats, physical and/or verbal intimidation, and non-consensual sexual contact are all common occurrences in U.S. long-term care facilities.
What is Neglect?
Neglect is a “passive” form of mistreatment that can result in physical, mental, and/or emotional injury. While abuse is an intentional and “active” form of mistreatment, neglect doesn’t always stem from intentional behaviors. Sometimes, those responsible for the care of residents are “simply” negligent or reckless. The potential absence of intention on the part of those causing harm does not excuse these behaviors, nor does it make neglect any less dangerous than abuse. If your loved one is not receiving access to the care they need – in terms of access to medication, proper attention to hygiene, adequate nutrition, etc. – they could suffer just as much as if they were being actively abused. As a result, if your loved one’s needs aren’t being met, it’s important to speak with our team about your concerns.
What is Exploitation?
Unlike abuse and neglect, exploitation is a form of mistreatment that isn’t usually directed at an individual. Instead, this form of mistreatment is directed at an individual’s money, property, identifying information, person, or other resources for the profit or advantage of those engaging in this form of mistreatment. Per California law, the theft, forgery, fraud, or identify theft – with respect to the property or personal identifying information of an elder or dependent adult by a caretaker – may either be punishable as a misdemeanor or as a felony, depending on the value of the property in question. Most often, exploitation occurs when a resident’s resources are obtained either without consent or with consent obtained through false pretenses, duress, deception, or undue influence. If you notice that your loved one’s property is missing, something is amiss with their financial accounts, fraud and/or potential identity theft alerts are issued in their name, etc. your loved one may be suffering from unlawful exploitation. If you suspect that this is the case, bring any relevant financial and/or property records with you when you attend your free consultation.

Legal Opportunities Available if Your Loved One Is Being Harmed

There are civil remedies available in the event that your loved one has been subjected to abuse, neglect, exploitation, and/or other unlawful forms of mistreatment. Depending on the unique circumstances that your loved one is facing, you may be able to file a personal injury action against the individual care provider or the facility at fault. California does cap statutory damages in such cases under certain circumstances. However, it may be significantly beneficial to pursue this opportunity for legal recourse regardless. We’ll advise you of the potential benefits and drawbacks of filing civil action if and when that opportunity for recourse becomes relevant to your situation.

When to Accept or Reject a Settlement

Oftentimes, a long-term care facility facing scrutiny will offer a mistreated resident and/or their loved ones a settlement in an effort to avoid litigation, public relations challenges, and even prosecution. There are settlement terms that a facility simply cannot ask an affected party to honor. Additionally, initial settlement offers may be devalued far below the amount of compensation to which the mistreated party would be otherwise entitled.

As a result, it is critically important that you refrain from signing any settlement documentation until our experienced legal team has been afforded the opportunity to review that documentation line by line. In signing a settlement agreement, you may be limiting your rights to hold the facility accountable in other ways and you may be limiting your ability to collect all of the compensation to which you would otherwise be owed. Do not sign any contracts or agreements concerning your loved one’s mistreatment until a lawyer with your loved one’s interests in mind has reviewed all relevant documentation. It may ultimately be in your best interests to accept the terms of the settlement offered. However, you won’t know that for sure until it has been reviewed by a knowledgeable legal professional dedicated to the practice of protecting victims’ rights.

Holding Others Accountable Beyond Civil Action

Depending on what our firm’s investigative efforts uncover, you may be in a position wherein you’ll want to report the mistreatment that your loved one is being subjected to. California has a system in place that allows loved ones to report allegations of exploitation, abuse, and neglect. As a result of this reporting, the state may launch an investigation into your situation both for your loved one’s benefit and for the benefit of others living in the facility. Reporting mistreatment can be an intimidating thought. However, your courageous choice to speak up on behalf of your loved one may help to ensure that justice is done in their name and that future mistreatment of all residents is prevented.

Contact Our Firm Today for a Free Case Evaluation

If you are at all concerned that your loved one may be suffering as a result of abuse, neglect, or exploitation, please schedule a confidential consultation with our firm today at no cost and with no strings attached to this meeting. If it is possible that your loved one is being harmed, you deserve to have access to the information necessary to make informed decisions about your legal options. We believe that access to critical information about a long-term care facility’s resident’s rights under the law shouldn’t be made available only to those who can pay for a consultation. Call today to schedule a free case evaluation and to have all of your questions answered and concerns reviewed by an experienced, compassionate legal professional. We look forward to speaking with you.

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