Nursing Home Neglect in Illinois: Everything You Need to Know

Discovering that your mother, father, or other family member was neglected requires a response. Nursing home abuse is never acceptable and nursing homes must be held accountable.

If you know your family member was neglected by a nursing home or if you suspect elder abuse has occurred, this article can help you find answers to questions and the right nursing home neglect attorney near you.

Who regulates and inspects nursing homes in Illinois?

There are approximately 1,200 long-term care facilities with over 100,000 residents in Illinois. Nursing homes are licensed, regulated and inspected by both the Illinois Department of Public Health (IDPH) and the US Department of Health and Human Services’ Centers for Medicare and Medicaid Services.

The IDPH oversees compliance with state and federal regulations. Each year, the department of health conducts approximately 1,300 inspections and investigates approximately 6,000 complaints of abuse or neglect in care facilities. Teams consisting of registered nurses, a nutritionist and an environmental health practitioner perform the nursing home inspections.

Inspections may include review of medical records, observation of care, inspection of the facilities and interviews with residents, staff or family member.

A list of Illinois nursing homes can be found here.

How do Illinois nursing home residents file complaints against the nursing home for suspected abuse and neglect?

The IDPH maintains a hotline number to report suspected nursing home abuse. That number is 800-252-4343. If a resident or resident’s family member calls this number and reports suspected elder abuse or neglect, a surveyor from IDPH will investigate the individual’s complaints.

The IDPH has the authority to cite the nursing home for violations of both state and federal regulations and to fine the nursing home in question. If IDPH cites the care facility for regulatory violations, the surveyor’s report can be very useful in determining whether a personal injury case should be pursued along with the names of potential additional parties, and the names of potential witnesses to depose.

What are signs of nursing home abuse and neglect?

It is critical to recognize common signs of nursing home neglect or abuse. According to the National Center on Elder Abuse (NCEA), approximately one-third of nursing homes had serious elder abuse violations that might have or did lead to harm to nursing home residents. A poll of 2,000 nursing home residents revealed 44% identified themselves as victims of elder abuse and neglect. Moreover, 95% were victims of neglect or witnessed neglect in nursing homes. There are six distinct types of common nursing home abuse:

1. Physical Abuse
2. Sexual Abuse
3. Psychological Abuse
4. Financial Abuse
5. Neglect
6. Resident-To-Resident Abuse

What are some types of elder abuse?

When you entrust a loved one to the care of a nursing home or other care facilities, it is critical that family members are aware of any signs of potential elder abuse. Whether you have an elderly parent in a long-term nursing home or a family member rehabbing after surgery, it is important to be vigilant to ensure proper medical care. Some common indications of potential abuse or neglect are:

1. Bedsores
2. Weight loss
3. Medication errors
4. Physical injuries including bruising, cuts, scrapes and broken bones
5. Self-isolating behavior
6. Disoriented, Nervous or Unusually Unhappy
7. Sudden difficulty sleeping

What is the most common type of elder abuse in nursing homes in Illinois?

Bedsores, ulcers or pressure sores are a common injury related to nursing home abuse or neglect. A bedsore is caused when blood supply is cut off from the skin. Bedsores can occur when you sit or lay for too long in one position and the weight of your body against the surface of the bed or chair cuts off blood supply. Nursing homes and other assisted living facilities are required to assess residents’ risk factors for developing bedsores. Risk factors include:

1. Immobility
2. Incontinence
3. Poor nutrition and hydration
4. Diabetes or  vascular disease

Nursing home residents may be immobile due to poor health or injures. These residents will have difficulty moving or changing positions while seated or laying down. Incontinence increases the likelihood that skin will be exposed to urine or stool. This will leave the skin more vulnerable to the development of bedsores. Inadequate fluids or nutrition can also lead to skin breakdown. Lastly, health problems such as diabetes affect blood flow and result in tissue damage.

Bedsores are classified in 4 stages. A stage one bedsore is the mildest and only affects the upper layer of the skin. This type of bedsore may be resolved in few days. A stage two bedsore is deeper and has broken the skin but not past the dermis to fat. The skin may appear broken or there may be an open wound. The area may also be swollen, warm or red.

A stage three bedsore has gone through the second layer of skin into the fat tissue. The sore may have red edges, drainage and an odor. Dead tissue may appear black and may need to be removed. The recovery time for this type of sore will likely be months. The last and most serious bedsore is a stage 4. This sore is the deepest and can go into ligaments or muscles. This sore will appear deep and big. This type of sore requires immediate medical attention and may require surgery.

Another common injury in nursing home abuse cases is related to falls. Nursing home staff members are required by state and federal statutes to properly assess nursing home residents’ fall risk. Elderly patients are more likely to suffer significant injuries in fall that can lead to serious health complications. High risk fall nursing home residents should be closely observed. Fall prevention measures should be taken such as bed rails, walkers, canes, appropriate footwear, removing trip hazards and rendering assistance when necessary.

Those nursing home residents at risk should be monitored closely by staff members and receive assistance with transfers to prevent them from falling. Bed rails, nonskid footwear, an appropriate armchair with wheels locked at bedside, walkers, and canes can be used to help prevent falls.

What is the purpose of the Illinois Nursing Home Care Act? And how does it impact residents of Chicago nursing homes?

The Nursing Home Care Act was adopted due to concerns over inadequate, improper and degrading treatment of patients in nursing homes and assisted living facilities. A key principle of the Act is the resident’s “bill of rights” guaranteeing residents specific rights. Specifically, the Act states:  No resident shall be deprived of any rights, benefits or privileges guaranteed by law, the Constitution of the State of Illinois, or the Constitution of the United States, solely on account of his status as a resident of a facility. 210 ILCS 45/2-101.

Further, the Act notes an owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident. It is the duty of any facility employee or agent who becomes aware of such abuse or neglect to report it as provided in the “Abused and Neglected Long Term Care Facility Residents Reporting Act.”  210 ILCS 45/2-107. If you or loved one is a resident of a nursing home, it is critical to be familiar with the rights and protections afforded under the Nursing Home Care Act.

How does the Illinois Nursing Home Care Act define abuse and neglect?

It’s important to note that the Act provides broad definitions of both neglect and abuse. “Neglect” means a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident’s physical or mental condition. 210 ILCS 45/1-117. “Abuse” means any physical or mental injury or sexual assault inflicted on a resident other than that by accidental means in a facility. 210 ILCS 45/1-103.

Residents’ right to personal care is essential. Understanding the personal care requirement can help families know what care to expect from a nursing home. “Personal Care” means assistance with meals, dressing, movement, bathing, or other personal needs, or general supervision and oversight of the physical and mental well-being of an individual, exclusive of nursing, who because of age, physical, or mental disability, emotional or behavior disorder, or mental retardation is incapable of maintaining a private, independent residence, or who is incapable of managing his person whether or not a guardian has been appointed. 210 ILCS 45/1-120.

What is required to file a medical malpractice lawsuit?

A medical malpractice lawsuit is unique from other personal injury actions because this lawsuit requires a supporting affidavit. Illinois’ Healing Arts Malpractice Act requires an affidavit from the attorney and health professional.

In Illinois, the Code of Civil Procedure requires a Plaintiff alleging a medical malpractice case must file an affidavit complying with the requirement of 735 ILCS 5/2-622 (a)(1). A proper affidavit must meet numerous requirements including: (1) the affidavit must be completed by a qualified healthcare professional; (2) the affiant must be knowledgeable in the relevant subject matter; (3) the affiant must have practiced or taught within the past 6 years in same area of health care or medicine at issue in the action; (4) meets the expert witness standards set forth in 735 ILCS 5/8-2501; (5) affiant has reviewed the relevant medical records; and (6) the affiant concludes there is a reasonable and meritorious cause for filing the lawsuit. Specifically, the requirements are as follows:

That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. 735 ILCS 5/2-622.

Obtaining a sufficient affidavit that conforms to all requirements is an essential step in the litigation process. Retaining an expert is often expensive. Your attorney at The Kryder Law Group can provide you the financial resources to retain an expert and help you choose the right one.

When is an affidavit pursuant to 735 ILCS 5/2-622 required?

An affidavit pursuant to 735 ILCS 5/2-622(a)(1) is required in all cases where “Plaintiffs seek damages for injuries or death by reason of medical, hospital or other healing arts malpractice.” Importantly, an affidavit is required for each defendant. For example, a lawsuit may include a hospital, physician practice and physician. A separate affidavit is required for each named defendant.

However, actions brought under the Illinois Nursing Home Care Act do not fall within this requirement, unless the action is claiming wrongful death. Therefore, a lawsuit brought under Nursing Home Care Act that does not involve a wrongful death claim will not require an affidavit.

Are medical records required to pursue a Illinois medical malpractice case and what if the records are not available?

The relevant medical records are necessary for a healthcare professional to provide a valid 622 affidavit. However, in some instances, the records are not available prior to filing a lawsuit. In the event a lawsuit is filed without the relevant records, the Plaintiff may indicate the lawsuit was filed without a consultation because the statute of limitations would impair the action.

Pursuant to 735 ILCS 5/2-622(a)(2), the Plaintiff is provided a 90 day extension of time to comply with affidavit requirements. Essentially, the court provides additional time for the Plaintiff to secure the necessary records and obtain a proper affidavit. Importantly, Illinois courts have ruled that Plaintiffs should be afforded numerous opportunities to comply with the affidavit requirements. See Lee v. Berkshire Nursing & Rehab Center, 2018 IL App (1st) 171344.

What is necessary to prove an Illinois medical malpractice case?

Generally, in order to successfully prove a medical malpractice there are 3 elements that you must prove: (1) a professional duty was owed to the patient; (2) a breach of the duty; (3) an injury caused by the breach; and (4) damages resulting from the breach. The first component can be proved by showing the patient was under the care of physician. The second component is essentially evidence that the physician violated a standard of care. There are medical standards that are accepted in each field. You must establish that the physician deviated from this medical standard of care. Some common examples of breach of a standard of care are:

1. Surgical Errors
2. Improper Medication or Dosage
3. Failure to Diagnose or Misdiagnosis
4. Premature Discharge
5. Failure to Order Appropriate Tests

Third, the breach must result in an injury. The breach of duty, or negligence, must directly result in an injury. Lastly, the injury must result in damages. Importantly, the damages must be rather significant. The litigation costs of a medical malpractice case are often extensive. Therefore the resulting damages need to also be extensive. The damages may include disfigurement; medical bills; loss of employment; disability; and pain and suffering.

What are the steps of a nursing home or medical malpractice lawsuit in Illinois?

Initially, your attorney may try to resolve your nursing home abuse or medical malpractice case directly with responsible parties. This is referred to as a claim stage. Typically these conversations are with insurance companies for the at-fault parties. If the case cannot be resolved, a lawsuit is then filed. Once service of the lawsuit and summons is accomplished on the defendants, or responsible parties, the parties will engage in written discovery. This will involve the exchange of information, evidence and documents between parties.

Next, the parties will engage in discovery depositions. A deposition is a discovery tool where the attorneys are allowed to question witnesses under oath. Generally, the injured party, family, treating physicians, staff and nurses will be deposed. Thereafter, each side may disclose experts. An expert is a witness retained to offer a specific medical opinion. Once the foregoing discovery is complete, the case may proceed to trial. Often times, cases will proceed to a pre-trial or mediation to determine if a settlement can be reached.

How should I document nursing home neglect or abuse?

If you suspect a family member or friend is suffering from nursing home neglect or abuse you should immediately take steps to preserve evidence. Injuries such a bed sores, cuts or bruises should be photographed.

Also, any evidence depicting a lack of adequate medical or personal care or maintenance care should be documented. For example, soiled bedding or an unkempt room with trip hazards. A journal or diary should be kept to keep accurate details including the names of nursing home staff members, nurses and physicians.

What if the injured party is incapacitated?

Often times it is necessary to appoint a representative for an individual who suffers a catastrophic or fatal injury. A probate matter must be filed in court to properly appoint a representative. Your attorney may also need medical records to substantiate the medical condition that necessitates a representative.

In some instances, a power of attorney may exist or can be obtained allowing others to handle legal or health decisions. In the case of a death, your attorney will need a copy of the death certificate, will and the identification of all heirs. Your attorney can assist you in having an appropriate representative appointed.

What safety measures and precautions are nursing homes required to take related to COVID-19?

Strict guidelines have been issued by the Illinois Department of Public Health to ensure proper monitoring of staff and residents. All nursing home residents should have vitals and pulse oximetry screened every 8 hours.

In the event of a positive COVID-19 test or viral respiratory infection, the nursing home resident must be placed in a private room; provided a mask; provided a routine pathogen test; and immediately placed in both contact and droplet transmission-based precautions. Symptomatic nursing home residents should only leave their room for necessary medical procedures and staff should consider working with only positive or negative residents. Ultimately, a nursing home resident should be transferred to a hospital based upon criteria used for other illnesses.

Facilities should stop group activities and restrict visitation to essential individuals. Meanwhile, staff members are instructed to stay home when sick and should be screened prior to beginning their shift. A nursing home should properly educate staff members on hygiene, disinfection and proper use of personal protective equipment. Updated guidance on the phased safe re-opening of nursing homes can be found here.

Is a nursing home required to inform family members of a COVID-19 case?

In light of troubling reports that nursing homes were failing to disclose COVID-19 cases, the Centers for Medicare & Medicaid Services announced that nursing homes are required to inform residents, their families and representatives when there is a positive resident or staff COVID-19 case. The notification must be made within 12 hours of a positive case.

Further, nursing homes must also report if 3 or more individuals develop respiratory issues within a 72 hour period. Nursing homes are required to report cases to the Centers for Disease Control and Prevention (CDC) as well as the state departments.

Are nursing homes liable for COVID-19 related injuries or death?

On April 1, 2020, Illinois Governor Pritzker issued Executive Order 2020-19 granting nursing homes and skilled or intermediate long-term care facilities immunity from civil liability “for any injury or death alleged to have been caused by any act or omission by the Health Care Facility, which injury or death occurred at a time when [the] Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak.”

The language of the order is broad and it is not clear how it will be interpreted. However, the order does not provide immunity to nursing homes and assisted living facilities in instances of gross negligence or willful misconduct. The full order can be found here.

Do I need to pay for the costs of my nursing home abuse and neglect or medical malpractice case?

No. Experienced Illinois nursing home abuse lawyers will advance the costs of litigation.

The costs associated with medical malpractice or nursing home neglect cases can be extensive. One of the most significant costs is retaining experts to advance your case. The litigation costs will also include court fees, depositions, reports and records.

Importantly, the Nursing Home Care Act allows for the recovery of attorneys’ fees. 210 ILCS 45/3-601. This provision is designed to encourage attorneys to handle cases with more modest value.

What is the Wrongful Death Act?

The Wrongful Death Act provides family members a statutory right to recover pecuniary injuries suffered by the family due a death. See 740 ILCS 1980/1. The next of kin are defined as blood relatives. The Act provides compensation to a descendant’s next of kin and/or spouse when a wrongful act causes a death. The Act states:

Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled  the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. 740 ILCS 180/1

What compensation can I receive in a Wrongful Death Act case?

Pecuniary damages include money, goods and services the deceased provided to the next of kin. If the deceased had children, the family would be entitled to recover for the loss of instruction, moral training and education assistance. A spouse may also recover for loss of consortium which includes sexual relations, society, companionship, support and guidance. In determining an award, the Illinois pattern jury instruction will direct a jury to consider the following factors when determining the pecuniary loss:

1. What money, benefits, goods and services the decedent customarily contributed in the past;
2. What money, benefits, goods and services the decedent was likely to have contributed in the future;
3. Decedent’s age;
4. Decedent’s sex;
5. Decedent’s health;
6. Decedent’s physical and mental characteristics;
7. Decedents’ habits of industry, sobriety, and thrift;
8. Decedent’s occupational abilities;
9. The grief, sorrow, and mental suffering of the next of kin;
10. The relationship between the next of kin and the decent.  IPI 31.01

Consider a scenario with the wrongful death of a 45 year old married father with 3 children. The father was in good health and therefore had a long expected life expectancy. The father was the sole income earner for the family who also played an integral role in raising his children and was involved in their education. He was also involved in the day-to-day chores and coached his children’s soccer teams. His widow has lost her husband of 15 years.  They enjoyed playing tennis, golf and dancing. The couple had begun retirement planning. A jury may consider the foregoing factors when determining the pecuniary award or compensation.

How long do you have to file a Wrongful Death Act lawsuit in Illinois?

The statute of limitations is a time period that lawsuits must filed. A wrongful death action must be filed within two years after the death of a decedent. However, a minor may file a lawsuit 2 years from after they reach the age of 18. If you fail to file a lawsuit within the statute of limitations, the lawsuit will be barred.

How long do I have to file a medical malpractice lawsuit in Illinois?

In Illinois, a medical malpractice lawsuit must be filed within two years from the date the patient knew or should have known of the injury. The discovery rule allows a Plaintiff additional time by allowing the “clock” to begin when the patient discovers the injury.

However, a lawsuit must be filed within 4 years of the negligent act. There are exceptions including minors who are allowed up to 8 years after the injury to file a medical malpractice. You should contact an attorney at The Kryder Law Group to discuss your injury details in order to identify the correct statute of limitations.

How can The Kryder Law Group help with?

When you or loved one has suffered from nursing home abuse, neglect, or medical malpractice, it can be stressful and traumatic. Having the proper guidance during this time is very important.

An experienced nursing home and medical malpractice lawyer will focus on your case so you can focus on your loved one. Call The Kryder Law Group and speak with an experienced Chicago nursing home abuse lawyer today about your case for free!