The LeBlanc Law Firm
The Texas population, as well as the
rest of the United States, is showing
steady increases in the number of
elderly in nursing homes as additional
baby boomers reach retirement. With
the population of nursing home
residents increasing, so will cases
involving nursing home negligence.
DALLAS NURSING HOME ATTORNEY
Nursing home abuse includes the following: assault, battery, sexual assault,
sexual battery, rape, unreasonable physical constraint or prolonged or continual
deprivation of food or water, and use of a physical or chemical restraint or
psychotropic medication for any purpose not consistent with that authorized by
Nursing home abuse is a widespread problem in the United States today. Most
residents in nursing homes are dependent on the staff for most or all their needs
such as food, water, medicine, toileting, grooming, stimulation and turning -
almost all their daily care. Unfortunately, many residents in nursing homes today
are starved, dehydrated, over-medicated, and suffer painful pressure sores. They
are often isolated, ignored and deprived of social contact and stimulation.
Because of insufficient and poorly trained staff commonly found in nursing
homes, care givers are often overworked and grossly underpaid which often
results in rude and abusive behavior to vulnerable residents who beg them for
simple needs such as water or to be taken to the bathroom.
Nursing home abuse is meant to be avoided by imposing heavy licensing and
regulation under both federal and state laws. Nursing homes are supposed to
protect elderly residents from harm. A gap often exists between the reality of
nursing home performance and legal standards. To close that gap, there must be
better enforcement and more adequate penalties.
NURSING HOME MALPRACTICE
Nursing home malpractice is an act or continuing conduct of a professional
(doctor, nurse, dentist, and counselor) that does not meet the standard of
professional competence and results in provable damages to his/her client or
patient. Many nursing home malpractice cases are brought against doctors who
were negligent in the manner in which they treated their patient. In order to prove
negligence, the plaintiff must have an “expert witness” such as a doctor that
specializes in the same field of medicine to testify as to the acceptable standard
of care in regards to the specific act in question. The expert witness must also
testify that the doctor did not meet that standard of care. If you have been a
victim of a nursing home malpractice act in Texas, you should contact a Dallas
nursing home malpractice lawyer to evaluate your case.
Nursing home malpractice can be committed by several types of health care
professionals, and in a case where a hospital employee commits malpractice, the
hospital itself may be held liable under the legal doctrine of "respondeat superior."
Under this theory, an employer may be held liable for the negligent acts of its
employee if the employee was acting within the scope of his or her employment
when the negligent act or omission occurred. This doctrine is very important to
plaintiffs in Dallas nursing home cases, because it helps ensure there will be a
financially responsible party to compensate an injured plaintiff.
In some situations, commonly involving attending physicians working in
hospitals, health care providers are considered independent contractors rather
than employees, which makes the doctrine of "respondeat superior" inapplicable.
What this means is, if a doctor or other health care professional is an independent
contractor, and commits malpractice while treating a patient in a hospital, the
hospital cannot be held liable for the doctor's negligence. However, the hospital
can be held liable for its own negligence, for example, in granting attending
privileges to an unlicensed or incompetent physician.
EXAMPLES OF NURSING HOME MALPRACTICE
There are many different circumstances in which a nursing home malpractice
suit can be brought against a physician or institution. The following examples are
1. Against an organization that operates hospitals or administers specialized care;
2. Against an organization for administering the wrong medication, wrong
dosage, negligent care, inadequate cleanliness, and faulty equipment;
3. Against a physician for not providing the acceptable standard of care to his
patient as is defined by the medical community;
4. Against a specialist who does not provide the acceptable standard of care as is
defined by other specialists in the same area of medicine;
5. Against a physician who did not diagnose, misdiagnosed, or delayed diagnosis
of a patient;
6. Against a physician who properly diagnosed a patient and did not treat the
patient correctly; and
7. Against a physician who did not complete a surgical procedure properly.
Doctor errors occur more often than people may think. Doctor errors cause
about 180,000 deaths each year. People rightfully expect that they will not
receive improper treatment due to doctor errors. Not only might doctor errors
cause medical bills to skyrocket, but they may also create additional medical
conditions causing future bills to pile up, lost wages and benefits, and pain and
suffering. Doctors are not infallible; they do make mistakes, do forget, and don't
know everything. The myth of infallibility is probably what prevents doctor
errors from being reported; people are slow to come to the conclusion that
perhaps their doctor didn’t know exactly what he was doing.
Nursing home malpractice occurs when a negligent act or omission by a doctor
or other medical professional results in damage or harm to a patient. Negligence
by a medical professional could include an error in a diagnosis, treatment, or
illness management. If such negligence results in injury to a patient, a case could
arise against the doctor if his or her actions deviated from generally accepted
standards of practice; against the hospital for improper care, such as problems
with medications, sanitation or nursing care; or against local, state or federal
agencies that operate hospital facilities.
Nursing home malpractice laws are designed to protect patients' rights to pursue
compensation if they are injured as the result of negligence. However,
malpractice suits are often complex and costly to win. While theoretically, you
can seek compensation for any injury caused by negligence, regardless of its
seriousness, time and money make it unrealistic to sue for an injury that is minor
or resolves quickly. Therefore, if you believe you have a nursing home
malpractice claim, it is important to consult with an attorney as soon as possible
who can help you determine whether your claim is worth pursuing.
Negligence: Most nursing home malpractice cases proceed under the theory that
a medical professional was negligent in treating the patient. To establish medical
negligence, an injured patient, the plaintiff, must prove:
The existence of a duty owed by the health care professional to the plaintiff (for
example, a doctor/patient relationship);
The applicable standard of care, and the health care professional's deviation from
that standard, which is deemed a breach of the duty owed to the patient;
A causal relationship between the health care professional's deviation from the
standard of care and the patient's injury; and
Injury to the patient.
One of the most important aspects of a medical malpractice action is establishing
the standard of care to be applied to the health care professional. Medical
professionals are often heard to refer to medicine as an art, rather than a science,
and although errors in judgment may result in injury to a patient, not all medical
errors are actionable as negligence.
To find a medical professional legally at fault, it must be shown that his or her
conduct fell below a generally accepted standard of medical care. To establish
the standard to be applied, the plaintiff must present expert testimony not only as
to the standard of care applicable, but that also establishes that the defendant
failed to meet the standard.
Another element of nursing home malpractice actions, causation, is sometimes
challenging to establish. Specifically, the plaintiff must show that his or her
health care provider's deviation from the applicable standard of care resulted in
his or her injury. This is challenging because sometimes, the health care
provider's deviation from the standard of care may not have caused the plaintiff's
eventual injury, and vice versa.
Negligent Prescription of Medications or Medical Devices
A medical professional may be held liable for the negligent prescription of a
medication or medical device if he or she ignored the manufacturer's
instructions, or prescribed an incorrect medication or dosage, which resulted in
injury to the patient. In some cases, a pharmaceutical manufacturer may be liable
where a drug caused a patient injuries, but only if the manufacturer failed to
warn of potential side effects or dangers of the drug. In most cases, the
prescribing physician is considered a "learned intermediary," which means that
because of his or her superior medical knowledge, and the fact that he or she has
been given adequate information from the manufacturer, he or she is in the best
position to determine whether a particular drug or device is appropriate for a
patient. Thus, the physician has the primary duty of advising the patient of the
risks and side effects of a medication or medical device he or she prescribes.
In many situations, the failure to obtain a patient's "informed consent" relative to
a procedure or treatment is a form of medical negligence, and may even give rise
to a cause of action for battery. Although the specific definition of informed
consent may be in dispute, it means essentially that a physician (or other medical
provider) must tell a patient all of the potential benefits, risks, and alternatives
involved in any surgical procedure, medical procedure, or other course of
treatment, and must obtain the patient's written consent to proceed.
In Texas, physicians and hospitals are protected by legal limits, called "caps," on
the amount of damages that can be awarded in malpractice suits. Recent
legislation in Texas has also resulted in very stringent requirements for obtaining
expert reports very soon after the filing of the lawsuit. In order to properly
evaluate your nursing home malpractice case, you should contact a Dallas
nursing home malpractice attorney.
HOME *PRACTICE AREAS*EXPERIENCE*AWARDS*LINKS*CONTACT US
The LeBlanc Law Firm is located at 3102 Maple Avenue, Suite 450, Dallas, Texas. For
directions, click here.
We serve all areas of North Texas, including Dallas County, Tarrant County, Denton County,
Collin County including the cities of Dallas, Fort Worth, Arlington, Irving, Grand Prairie,
Garland, Mesquite, Richardson, Plano, Frisco, Carrollton, Farmers Branch, Lewisville, Hurst,
Euless, Bedford, Grapevine, Coppell, Colleyville, Duncanville, DeSoto, Cedar Hill, Lancaster
and Rockwall. We also accept cases throughout the State of Texas including Houston, Austin,
San Antonio, Tyler, El Paso, Waco, Lubbock, Amarillo, Corpus Christi, Brownsville,
Beaumont, Abilene, Wichita Falls, Laredo, Midland, Odessa, Texarkana or any other city in
Examples of personal injury cases handled by The LeBlanc Law Firm: truck accident,
automobile accident, premises liability (slip and fall), medical negligence, nursing home
negligence, dental negligence, wrongful death, defective product, defective drug, false
imprisonment, construction accident, employment related injuries.
Please visit our other websites: General Practice and Business and Employment law sites.