Nursing homes and care facilities here in Texas are sadly one of the most predominant examples of the overlap between criminal justice prosecutions at both the state and federal levels with corresponding injury claims filed in civil proceedings.  All sorts of criminal acts occur at nursing homes:  from theft of property; to physical assaults or sexual assaults on the elderly; to the wrongful death of residents due to abuse or neglect, arrests are made throughout Texas by both state and federal authorities.

Nursing Home Abuse: Texas Ranks Worst in the Nation

Texas is notorious for its failure to protect elders who reside in nursing homes from criminal acts involving abuse or neglect.  According to the non-profit advocacy group FamiliesForBetterCare, Texas has the dubious distinction of being ranked as the worst state in the country for nursing home quality for the past three years.

As of the date of this article, Medicare reported 305 nursing homes in the State of Texas as being “much below average,” the lowest possible score with a one-star rating for quality of care.  Fifteen of these facilities were in Dallas County; another eleven were in Tarrant County; and five were in Denton County.

Criminal Acts of Abuse and Neglect in Texas Nursing Homes

Other statistics confirm the high risk of criminal harm to those who reside in a Texas nursing home facility.  Crime Stoppers reports the following:

• Each month in 2019, there were approximately 5000 elder abuse cases reported in Texas;
• The United Health Foundation’s 2019 American Health Ranking Senior Report ranks Texas as 50th in nursing home quality; and
• Female victims make up 64% of Texas elder abuse investigations.

For more, read “Texas Is The Worst For Nursing Home Care: Report,” written by Fernando Alfonso and published by Patch on February 1, 2019; and see, Karen J. Magruder, Noelle L. Fields & Ling Xu (2019): Abuse, neglect and exploitation in assisted living: an examination of long-term care ombudsman complaint data, Journal of Elder Abuse & Neglect, DOI: 10.1080/08946566.2019.1590275.

Criminal acts involving nursing home abuse or neglect can result in arrests and prosecution by the local authorities.  Sometimes these occur at the state level.  Since federal funding (Medicare, Medicaid) may be attached to the institution, federal cases can also be filed based upon federal law.

However, regardless of whether the criminal charges are filed pursuant to federal statute or the Texas Penal Code, the nursing home resident and his or her loved ones cannot look to the criminal courts for redress. Criminal proceedings focus upon punishment of the wrongdoer through fines and incarceration.  The resident and his family members must seek justice for their suffered harm in an independent civil proceeding based under state personal injury laws (and not criminal statutes).

Civil Injury Claims for Abuse in a Texas Nursing Home or Care Facility

In addition to the possibility of financial redress, the civil system may offer the nursing home resident a wider basis for legal action than the criminal justice system provides to the state.  For instance, while emotional abuse cannot form the basis of a criminal charge, it may be a legitimate basis for seeking civil injury damages.

What all does elder abuse involve from a civil personal injury perspective? According to the National Council on Aging (NCOA), elder abuse can include many different things, such as:

• physical abuse (including beatings and assault or assault by threat);
• sexual abuse (g., rape or sexual assault);
• emotional abuse;
• financial exploitation (g., theft or fraud);
• passive neglect;
• confinement (including false imprisonment); and
• abandonment or willful deprivation of basic needs.

The Office of the Attorney General for the State of Texas defines elder abuse as follows:

Abuse includes involuntary seclusion, intimidation, humiliation, harassment, threats of punishment, deprivation, hitting, slapping, pinching, kicking, any type of corporal punishment, sexual assault, sexual coercion, sexual harassment, verbal abuse, or any oral, written, or gestured language that includes disparaging or derogatory terms, regardless of the person’s ability to hear or comprehend. 

Neglect means the failure of a caretaker to provide the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain. 

Exploitation includes a caretaker’s illegal use of a senior’s resources for monetary or personal benefit, profit, or gain. Seniors may need help with their finances, but unless they hand control over to another person, they have the same right as anyone else to receive, spend, invest, save or give away their money. A family member, “friend” or nursing home may not take control of a senior’s money without that person’s permission.

 Personal injuries suffered by the nursing home resident must be investigated no matter the form that they take. This is because the civil justice system established by the State of Texas may provide relief for personal harm that is more widely defined than in criminal jurisprudence.  Additionally, there may be situations where not only the resident but his or her immediate family members have legal causes of actions to assert based upon the nursing home abuse itself.

Legal Claims for Nursing Home Abuse Damages

Under Texas law, the nursing home resident as well as his or her family members may have civil injury claims that can be based upon a variety of personal injury legal bases, such as:

• Negligence in Care or Treatment
• Negligent Supervision or Hiring or Retention by the Nursing Home
• Premises Liability
• Product Liability
• False Imprisonment
• Medical Malpractice
• Wrongful Death.

Most civil claims involving nursing home abuse will be based upon circumstances where the resident has been harmed because of the wrongful acts of one or more employees of the nursing home facility.  These may include health care providers as well as its staff, managers, or administrators.

The nursing home resident and his or her loved ones, as claimants, will have the legal duty to provide admissible evidence that there was:

• A legal duty of care owed to the resident;
• This standard of care is defined by law as to what the nursing home and its employees (or physician, etc.) were to meet;
• This duty of care was breached by one or more individuals; and
• As a result of this breach of duty, the resident was harmed.

This will form the basis for a basic negligence claim and may include claims for negligent hiring; negligent supervision; or negligent retention by the nursing home.  It may involve a medical malpractice claim against the physician or health care provider providing treatment at or for the facility.

Other claims that may be possible as well, depending upon the facts of the particular case, include assault and battery; false imprisonment; premises liability; product liability; respondeat superior; and wrongful death (and survival) damages.

When intentional acts are involved, as for example physical abuse or sexual abuse by an employee or agent of the nursing home, then Texas law will allow for causes of action based on “intentional torts” in addition to the basic negligence claim outlined above.  Intentional torts will allow the resident to seek additional damages including punitive or exemplary damages from the nursing home facility and its owners and operators.

It is also important for the resident and their loved ones to know that there are specific statutes of limitations that place a firm deadline on the time period within which a suit may be filed based upon this wrongdoing.  In most instances, this will be two (2) years from the date that the “cause of action accrued,” and if that deadline is missed then the case will be “time-barred” no matter how worthy.

2.  Variety of Potential Parties Who May Be Held Liable for Nursing Home Abuse Harm

Civil injury claims based upon elder abuse in a Texas nursing home or care facility can be complicated.  These cases can involve intentional misconduct as well as negligent actions.  More than one person may be implicated in the abuse.

Those who are responsible can include individuals as well as companies and corporations.  The abuse itself may be attributed to several people over a period of time (bedsores, for example, are evidence of more than one nurse or doctor failing in their duty of care over a matter of days, weeks, or months).

Moreover, both the owner and operator of the facility itself may be legally liable for what has occurred, where huge corporations in their pursuit of profits have failed to properly hire or supervise employees; they have kept (retained) employees that should have been let go; or they have failed to properly repair and maintain the facility and/or its equipment.

For instance, a Texas Nursing Home Abuse Injury Claim may be asserted against:

• The corporation that owns the nursing home or care facility (owner) as well as the company that operates the nursing home or care facility (operator);
• Contractors and businesses that serve the facility in some way (cleaning crews; repair companies; maintenance companies; food service providers; etc.)
• Individuals who work in the Nursing Home’s Administration who are personally responsible for the daily operations of the facility or those working in Human Resources or otherwise responsible for the hiring, firing, and/or oversight of the nursing home employees, staff, contractors, etc., even if they are off-site;
• Those employed to supervise the physical location of the harm and those with the job to oversee resident care overall;
• Doctors, nurses, and health care providers responsible for the care and treatment of the nursing home resident; and
• Any others who the facts reveal to be involved in the actual harm to the resident (including other residents as well as the person facing the corresponding criminal charges).

Nursing Home Standards Defined by Federal Law and Licensed by State of Texas

Nursing homes are understood by lawmakers to be places where society’s most vulnerable will live and in response, both federal and state laws have been passed to place specific protections and safeguards for these businesses (most nursing homes are for-profit institutions).

In fact, throughout the United States the nursing home industry today include several huge nursing home chains, where corporations own and operate hundreds of facilities, including:

• Genesis Healthcare Corp. (411 facilities, 49,000 beds);
• HCR ManorCare (281 facilities, 38,328 beds);
• Golden Living (302 facilities, 30,937 beds ); and
• Life Care Centers of America (223 facilities, 29,338 beds).

It is a profitable section of our state and national economy.  The nursing home industry has reportedly grown each year to reach $129 Billion in annual revenues, with projections that nursing care facilities will remain a growth industry (despite the Coronavirus) due to the aging baby boomer population.

Under the Omnibus Reconciliation Act of 1987, nursing homes are regulated by federal law insofar as they receive federal monies under programs like Medicare and Medicaid.   Nursing homes are also licensed, credentialed, and regulated by the State of Texas.   Inspections and reviews are undertaken by government authorities each year.  It is from these inspections, for instance, that the above Medicare rating system is tallied and published.

When a nursing home resident and their loved ones seek to pursue legal claims for injuries based upon nursing home abuse and neglect, the failure of the facility to meet its regulatory standards may support the civil claim for damages based upon negligence (or other civil torts).  A failed inspection, for instance, is evidence that the nursing home was aware of its failure to meet its defined duty of care.

Damages in a Nursing Home Abuse Injury Claim

The nursing home resident who successfully pursues a nursing home abuse injury claim may be able to obtain legal redress from the nursing home chain and others who share legal liability for the harm that has occurred as well as its resulting consequences.

Damages can include medical expenses; future medical costs; pain and suffering; permanent physical impairment; permanent mental impairment; psychological counseling; physical therapy and rehab; wheelchairs or other medical equipment needs; and in severe instances (intentional harm or gross negligence) punitive or exemplary damages.  If the resident has died as a result of the nursing home abuse, then his loved ones may pursue claims under the Texas Wrongful Death Act.

Civil Nursing Home Injuries after Criminal Act

When a nursing home resident has been the victim of a criminal act, then the State of Texas may provide a corresponding avenue for justice for harms that are the result of wrongs committed by the nursing home or care facility.  These cases may involve a number of defendants, including not only the perpetrator of the criminal act as charged by the prosecutor, but the owner and operator of the facility itself as well as other involved in the circumstances.

For more discussion on instances where the criminal system intersects with civil injury claims, see:

• Deadly Drunk Driving Accidents: Criminal DWI And Civil Injury Claims For Wrongful Death In Texas
• Crimes of Sexual Assault or Rape: Texas Injury Claims Based Upon Premises Liability Law
• Shoplifting: The “Shopkeeper’s Privilege” in Texas and Civil Personal Injury Claims
• Sexual Harassment: Sexual Assault Personal Injury Claims in Texas
• Child Abuse Crimes, Civil Claims, and Homeowner’s Insurance.

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, ”Pre-Arrest Criminal Investigations.”