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To sue or not to sue?

Although the government is attempting to have greater regulation of the long-term care industry, law suits are the most effective way for ensuring the industry is held accountable. Claims against them will force care homes to implement and monitor appropriate and necessary standards.

Despite laws enacted to protect residents of long-term care homes, it is evident through statistics of elder neglect and abuse, that the elderly in Canada are not protected in long-term care. Even given Ontario’s strong legislation to enhance care and safety of long-term care residents it is simply not enough to stop the abuse and neglect in all homes. This was confirmed by the report of the Long-Term Care Task Force report on Resident Care and Safety. The task force concluded that some of the main impediments to a reduction in the neglect and abuse of our seniors is the lack of adequate staffing, the inefficient training of staff that does exist, in addition to an environment where the lives of the elderly are not seen as valued, as much as others.

Taking on nursing homes is not an easy task, but the only way they will be held accountable and live up to their obligations to their residents, is to pursue claims when they have failed to meet the standard of care they promised to their residents upon admission and are regulated by law.

When we assess a case where long-term care home negligence or abuse is alleged, the facts must be thoroughly investigated. Oral and documentary discovery of the resident’s condition is necessary, documentary discovery of the homes conduct is equally important, including obtaining home records and government records about the home. The most essential document in evaluating the negligence or abuse case in a copy of the nursing home chart.

To establish causation a qualified medical doctor is required to act as an expert. Evidence must be established that the home failed to use such care as a reasonable prudent home and/or doctor would have used under similar circumstances in caring for the resident, and the failure to use reasonable care resulted or contributed in the resident’s damages.

How the injury occurred is important to ascertain in assessing whether to sue. Often this may be difficult and may require an expert review. Initial steps include obtaining all relevant documents, including medical records.

Reviewing the medical record is essential in evaluating a claim. It is important to obtain the records immediately before the records have been reorganized and reviewed by the long-term care home. Records should be requested from the family physicians and/or hospitals that treated the resident during the relevant time. The list of records required include: home medical chart; family physician chart; treatment facilities who treated the resident following the injury; radiographs taken of the resident; ambulance or emergency response records; autopsy report and death certificate if necessary.

Knowing the most recent medical condition of the resident is important. Information is gathered from the resident, family members, and friends assisting in showing the care, or lack thereof, that precipitated and caused the injury.

Obtaining information about the resident prior to admittance is important. Persons involved with the admitting process are interviewed.

Family members who visited and had contact with the resident are interviewed. They may have information relating to any complaints made to the nursing home regarding the resident’s care and in turn any comments the staff might have made regarding the care of the resident. The resident’s visitors are also able to make observations concerning the nursing home environment as well as direct care they have seen provided to the resident.

Necessary to evaluate a claim are records from government agency regarding reports of abuse by the home as well as home records, including the resident’s admittance contract and all insurance policies regarding the home. At Brown Law we are well versed in the law and will get to the truth; not just how the incident happened, but rather why the circumstances that lead to the incident were allowed to happen.

It is essential to bring to light the laissez-fair attitude and neglect taken by the corporate entity. The finger must be pointed on the corporate defendant for their ineffectiveness such as: why they failed to hire enough staff; why they did not have a registered nurse or doctor on staff at the relevant time; why they failed to provide appropriate training to comply with their policy standards; why the resident that was susceptible to pressure sores was not brought to the staff’s attention for frequent repositioning; or why the staff was not given appropriate training to chart and report incidents. Bringing to light these questions will shed light on the negligence of the corporate entity and the administrations’ neglect of the resident.

It is essential to retain a lawyer familiar with the legislation applicable to long-term care facilities as the success of a negligence claim against a corporate entity and their insurer will be based on that lawyer’s ability to seek out and prove the allegations that they failed in their duty of care. Michelle Brown is such a lawyer.