By Ohio nursing home neglect and abuse attorney, Blake Dickson

We receive calls every day here at The Dickson Firm, L.L.C., from individuals and families whose loved one has been neglected and/or abused while a resident of an Ohio Nursing Home.  We post a lot of blogs on this website about how to keep your loved ones safe.  We post blogs about how to properly choose a good nursing home.  We post blogs about how to check and see if your loved one is receiving good care at a nursing home.  We also post a lot of blogs about nursing homes that do not provide good care to help our clients and the people who visit our website avoid bad nursing homes. 

Unfortunately, when a lot of people call us, their loved one has already been neglected or abused. 

They often have questions about what they can do.  What is available to then?  How does the process work?

If someone you love has been neglected or abused in a nursing home, please call us here at The Dickson Firm at 1-800 OHIO LAW, as we would be happy to talk with you and help you in any way that we can.  We talk with each caller and analyze every case on a case-by-case basis to see what we can do to help every caller.  

Nursing homes are subject to a large number of laws and regulations.  There is a body of law known as the Code of Federal Regulations which is a series of federal regulations that requires nursing homes to do a variety of things.  These regulations were passed to help keep nursing home residents safe nationwide.  Sadly, many nursing homes ignore these Federal Regulations.

There is also a body of law known as the Ohio Administrative Code.  There are certain sections of the Ohio Administrative Code which are promulgated by the Ohio Department of Health.  These sections impose specific requirements on all Ohio Nursing Homes with respect to the care of nursing home residents.  

Finally, there is a set of laws known as the Ohio Nursing Home Residents Bill of Rights.  These laws are contained in the Ohio Revised Code which is the set the laws for the State of Ohio.  The Ohio Nursing Home Residents Bill of Rights guarantees a variety of rights to nursing home residents including the right to a safe environment, and the right to appropriate medical care.  

When a nursing home provides substandard care or improper care to a nursing home resident, that resident and/or his family can file a lawsuit against that nursing home and seek damages for the injuries that that resident has suffered.  If a nursing home resident has been neglected or abused and suffered injury, that resident can file a lawsuit against the owners and the operators of the nursing home for their injuries.  If the resident is not able to bring the lawsuit on their own, a guardian can be established through the probate court.  The guardian can then bring the lawsuit on behalf of the nursing home resident.  Pursuant to O.R.C. §3721.17, if the nursing home resident or their legal guardian is unable to commence an action, the nursing home resident’s spouse, his or her parent, adult child, guardian, brother, sister, niece, nephew aunt or uncle can commence a cause of action on behalf of the resident.

Nursing home residents who have been neglected or abused can recover money damages for the injuries they have suffered.  They can recover compensation for their pain and suffering.  They can recover compensation for their loss of enjoyment of life.  They can recover compensation for the medical bills that they have incurred for the treatment that they have received for the injuries that they have suffered as a result of the neglect or abuse at the nursing home.

Pain refers to the physical pain that the nursing home resident has suffered as a result of the neglect or abuse of the nursing home.

Suffering refers more to the emotional aspect of an injury.  Under the Nursing Home Residents' Bill of Rights, nursing homes are obligated to treat their residents at all times with dignity and respect.  To the extent that the nursing home mistreats a resident, and that resident suffers, in addition to recovering for the physical pain that that resident suffered, they can also recover for their emotional suffering.

Loss of enjoyment of life refers to missing out on their daily activities as a result of an injury.  If a resident is injured and as a result has to stay in bed, or is not able to be mobile, they can recover for the activities they missed out on.  They can recover for events that they missed out on.  If they are unable to attend their granddaughter's graduation from high school or college, if they are unable to attend a wedding, if they are unable to attend a birthday celebration or share a holiday with their family, they can recover for those losses.  They can recover for missing out on daily activities that they enjoy.

Can a person's family bring a claim if that person has died?

Yes, the family can bring a claim for all of the damages described above.  Those damages survive the resident's death and become what are known as “survivorship” damages.  The family is able to bring a lawsuit, even after the resident has passed away, and pursue all of the damages listed above, including the resident's pain and suffering, loss of enjoyment of life, and related medical bills.

In addition, if a resident has passed away and their death was caused by the substandard care at the nursing home, the family can pursue a claim for the damages to each of that person's next of kin.  

Each of the resident's next of kin has a claim for their mental anguish or their emotional suffering as a result of the resident's death.  

They also have a claim for their loss of society meaning that they had a meaningful relationship with that individual, and as a result of that individual's death, they have lost that relationship, and they are entitled to compensation for the loss of that relationship.

In order to pursue a claim on behalf of a resident who has passed away, an estate must be opened with the Probate Court.  A Personal Representative must be appointed.  Each of the next of kin must be given notice.

There are certain next of kin who are presumed to be harmed by a person's death.  A person's parents, spouse, and children are all presumed to be harmed as a result of that person's death.  Other relatives can make a claim for their damages as a result of that person's death.  Those individuals, outside of the decedent's parents, spouse and children, need to file a notice of claim with the probate court once the estate has been opened.  We can help other next of kin file such a notice of claim and pursue their damages.

Once an estate is opened and a Personal Representative has been appointed, that Personal Representative can then retain The Dickson Firm, L.L.C. to represent the Estate of the decedent and each of the decedent's next of kin in a lawsuit against the owners and the operators of the nursing home.  There can only be one such lawsuit, and only the Personal Representative is authorized to bring that lawsuit.  Therefore, when we are contacted by a family member, we work with all the family members to coordinate and determine who should be the Personal Representative of the estate once the estate is opened.  The Personal Representative is just a nominal party.  They are simply a person appointed to act on behalf of the estate.

In Ohio, there are caps on certain types of damages.  There are no caps on wrongful death damages.  When you call us, we can certainly talk with you about all of the different damages that are available to a nursing home resident and their family in a lawsuit against the owners and operators of the nursing home.

It is very important to identify all of the appropriate defendants in a nursing home case.  Nursing homes are often owned through a series of interlocking companies.  Here at The Dickson Firm, L.L.C. we have a great deal of experience identifying all of the appropriate defendants in a nursing home case.  Often there are management companies and holding companies and different entities who are involved in the ownership and operation of a nursing home, all of whom are potentially liable to the nursing home resident or their family in a case where the resident has been neglected or abused.  We have even encountered nursing home chains which have established separate companies, for the sole purpose of employing the staff at the nursing home.  If you do not sue that company, you may not be able to make a full recovery.

Prior to filing a lawsuit against the owners and operators of a nursing home or shortly after filing such a lawsuit, an affidavit of merit needs to be filed signed by one or more appropriate experts attesting to the fact that the nursing home has breached the applicable standard of care and as a direct and proximate result of that breach has caused harm to the resident.

There is a time period within which a lawsuit must be filed.  For the survivorship claims described above, the nursing home resident has one (1) year from the date they knew or should have known that they received substandard care and suffered injury.  If the resident has dementia or is otherwise mentally unsound or unable to act on their own behalf, then that statute of limitations does not begin to expire during their life.  It likely begins to expire on the date of their death.  So the family of a resident who is not able to act on their own behalf will likely have one (1) year from the date of that resident's death to bring the survivorship claims.  

The statute of limitations for the wrongful death claims is two (2) years from the date of the resident's death.  However, there are some defense attorneys in Ohio, currently trying to make the argument that the statute of limitations for wrongful death claims is only one (1) year from the date of the person's death.  That is not what the wrongful death statute says.  The wrongful death statute clearly indicates that the timeframe for bringing a lawsuit for wrongful death is two (2) years from the date of the person's death.  If you do not file a claim within the applicable statute of limitations, then that claim will be forever time-barred.  

There is also a time period known as the statute of repose that imposes a four (4) year time limit from the date of the subject incident.  If a lawsuit is not filed within the four (4) year statute of repose, then that claim is also forever time-barred.

Given that there are a number of different statutes and laws that apply to the timing of the filing of a nursing home case, we always recommend to anyone considering bringing a lawsuit, to contact us as soon as possible so that we can analyze your case, and determine the timeframe within which your lawsuit needs to be filed.  As indicated above, if you wait too long, your claims will be forever time barred.

If someone you love has been neglected or abused in a nursing home, please call us here at The Dickson Firm at 1-800 OHIO LAW as we would be happy to talk with you and help you in any way that we can.