Civil Litigation

Quality nursing home care a public policy concern, says Rashid

By Tony Poland, AdvocateDaily.com Associate Editor

A recent decision awarding $640,000 in a nursing home death that included $25,000 in punitive damages, sends a message that the issue of care is a “public policy concern” that the “courts will not take lightly,” says Ottawa personal injury lawyer Najma Rashid.

“We have an aging population, and this is where many of our elderly with dementia and Alzheimer’s may spend their final years,” says Rashid, a partner with Howard Yegendorf & Associates. “So, I think it’s indicative that society, the judiciary at large and the legal and health-care communities, are perhaps scrutinizing the level of care.”

Court heard a woman was a short-term resident at a seniors’ home in June 2009 when her neck got caught between her bed mattress and an improperly attached halo device, and she choked to death.

Ontario Superior Court Justice Ria Tzimas writes that the tragedy was compounded by the fact that the nursing home told the woman’s children that their mother died of natural causes.

“They only learned of the true cause of her death after they spoke to the coroner and he showed them the bruising to their mother’s neck,” she says.

Tzimas writes that she accepts “the plaintiffs’ repeated submission that the principal reason for proceeding with the trial was to make [the nursing home] accountable and responsible for its conduct in their mother’s ordeal.”

Rashid, who was not involved with the case and comments generally, says the jury in the case took note of the facility’s actions in its verdict.

“What’s important about this decision is that there was a punitive damages award against the nursing home, and that had to do with not just how she died but the fact that it wasn’t upfront with the family after it happened,” she tells AdvocateDaily.com. “I think that is something the court looked down upon.”

Rashid says such facilities are governed by the Long-term Care Homes Act and its Residents’ Bill of Rights.

“It forms part of the contract between residents and the long-term care homes,” she says. “The Residents’ Bill of Rights includes the right not to be neglected, the right to be protected from abuse, the right to live in a safe and clean environment, and the right to be treated with respect.

The facilities must also ensure employees adhere to a zero-tolerance policy for abuse, Rashid says.

“From a litigation perspective, you always look to see if that policy is being followed,” she says. “Abuse doesn’t just mean physical abuse. It means verbal abuse, threatening behaviour, denigrating a resident, and in the context of a patient with mobility issues or a resident that has Alzheimer’s or dementia, the goal of preventing this type mistreatment is highly pertinent because they can't speak for themselves and they're very vulnerable.”

Rashid says when handling claims involving long-term facilities, she first looks at whether negligence occurred and if it played a part in death or injury. She will also look at that particular resident's plan of care, which highlights any special needs a resident might have and how to deal with them.

“Quite often if there’s a death there will be a coroner’s report, and that might shed some light on how the death occurred,” she says. “If there's been some physical aggression between a care worker and a resident, the elder abuse unit from the local police may also become involved.”

In allegations of injury or death, the Ministry of Health and Long-Term Care conducts its own investigation and releases its findings online.

Rashid adds that it is also necessary to look into the history of the home to see if there were prior incidents involving certain employees implicated in the injury or death, and whether there was a reason to suspend or terminate those caregivers.

“If the employee of the nursing home was negligent toward the resident leading to an injury, accident or death, then the nursing home itself is vicariously liable,” she explains. “There could also be independent findings of liability against the nursing home for failure to terminate or suspend an employee that has had numerous infractions of the zero-tolerance policy or the Residents’ Bill of Rights for example.”

There could also be other reasons the facility is potentially liable, such as failing to provide proper supervision, Rashid says.

She says if there is a death or accident involving negligence, families can file a claim under s. 61 of the Family Law Act for loss of care, guidance and companionship. If there’s an accident, the resident may make a claim for damages for pain and suffering.

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