ELDER ABUSE AND

NEGLECT IN LOUISIANA

– PART II

“Part I of this series focused on defining and quantifying the problem of elder abuse in the United States. Part II will discuss

your legal options should you find yourself in the position of suspecting that a loved one is the victim of elder abuse.”

Broussard & Hart, LLC

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

2

“WHAT YOU CAN DO”

Despite advances in medicine, science, and technology that allow us to live longer, no

one has yet discovered a way to completely halt the natural aging process. Consequently,

all of us will eventually end up growing old. Growing old may mean physical disability,

mental deterioration, or both. If your parent, grandparent, or other elderly loved one has

reached this point you will have to make some difficult decisions regarding his or her

care. When an elderly loved one

can no longer safely care for

himself/herself it becomes

necessary to bring in outside

help or place the individual in a

nursing home or other long-term

care facility.

Sadly, this can place your loved

one at risk of becoming a victim

of elder abuse or neglect. Abuse

and neglect of the elderly is a growing problem in the United States. If you suspect that

your parent or other elderly loved one is a victim you should notify the authorities and

consult with an experienced elder law attorney right away; however, in the meantime it

may be beneficial to have a better understanding of the law as it pertains to elder abuse

and neglect.

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

3

Part I of this series focused on defining and quantifying the problem of elder abuse in the

United States. Part II will discuss your legal options should you find yourself in the

position of suspecting that a loved one is the victim of elder abuse.

WHO IS LIABLE?

Abuse or neglect of an elderly victim can be a criminal offense or it can be the basis of

civil litigation, or both. When the abuse rises to the level of a criminal offense it should

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

4

be reported to the nearest law enforcement agency for investigation. Typically, this

applies when a victim has been physically or sexually abused or when a theft has

occurred. Often, however, the victim of elderly abuse also has a valid cause of action

against the nursing home in civil court based on negligence.

SUING A CAREGIVER FOR NEGLIGENCE

A nursing home, long-term care facility, or

even a home health care agency can be held

liable for abuse or neglect that results in

harm to a patient. “Negligence” is a legal

term that requires a victim to prove four

elements to be successful:

Duty of care –clearly, when you

place your loved one in the care of a

nursing home or similar caregiver

there is a duty of care owed to the

patient by the caregiver.

Breach of the duty of care –in the

case of elder abuse, breaching the

duty of care might include things

such as physically abusing the

patient, emotionally traumatizing the

patient, or failing to properly care for the patient.

Causation – the breach must be shown to be a cause of the injuries suffered by the

victim.

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

5

Damages –the victim must have suffered injury as a result of the defendant’s

conduct.

COMMON EXAMPLE OF NEGLIGENCE

Although there are an infinite number of ways in which a nursing home could be

negligent, some of the more common grounds on which a nursing home is held liable in a

negligence lawsuit include:

Negligent hiring – a

nursing home, or other

care facility/agency, is

expected to conduct a

proper investigation of

any potential applicant

prior to hiring the

individual. If it later

turns out that a

member of the staff has a record of elder abuse, for example, the facility could be

held liable for negligent hiring.

Negligent supervision – the facility/agency is also expected to properly train and

supervise all staff members. Failing to do so may expose the facility/agency to

liability if the lack of training or supervision contributed to acts of abuse or

neglect.

Failing to maintain a safe premises – the facility may be held liable for any

known danger, or danger that should have been known, if that danger then caused

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

6

harm to a patient. For example, if a patient slips and falls because the hand railing

on the stairs was loose and had been that way for months that may be negligence.

Failing to provide adequate medical treatment –when a patient receives sub-

standard medical care it may be the basis for a medical malpractice lawsuit against

the facility/agency providing the care if the patient suffers as a result.

DO YOU HAVE THE AUTHORITY YOU NEED?

One thing that loved ones often fail to think about until it causes a problem is the need to

have legal authority over an elderly loved one. People often assume that being the spouse

or adult child, for example,

entitles them to access medical

records and/or speak on behalf

of an elderly patient. However,

this is not the law. With

HIPAArules in place, a

healthcare provider will not

disclose protected patient

records to anyone without

proper authorization. This can

be a significant obstacle if you are trying to determine whether or not abuse or neglect is

occurring. Furthermore, if you do conclude that your loved one is being abused and/or

neglected you may find that you do not have the legal authority to do anything about it.

Without the proper legal authority you may find, to your horror, that you do not have the

ability to remove your loved one from the facility much less pursue legal action against

the facility.

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

7

There are several different ways in which you can obtain the authority you need to act on

your suspicions of abuse or neglect. Unfortunately, some of them require your loved one

to be of sound mind to execute, such as a power of attorney or advanced directive. If your

loved one is suffering from dementia, or is otherwise incapacitated, the only option

available may be to seek legal guardianship over your loved one. In this case, you will

need to consult with an experienced estate planning attorney or elder law attorney to

determine how best to obtain the authority you need.

WHAT TO DO IF YOU SUSPECT ABUSE AND / OR

NEGLECT

If you suspect that your elderly

loved one is the victim of abuse or

neglect your first step should be to

try and confirm your suspicions.

There are several ways in which

you may try to accomplish this,

including, but not limited to:

Talk to your loved one

Ask to see medical records

Consult with your loved

one’s primary care physician

Compare notes with other family members and loved ones

Make frequent, unannounced visits to the facility

Try to speak to other residents

Review your loved one’s financial records if you suspect theft

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

8

YOUR LEGAL OPTIONS

If your suspicions are confirmed, you need to take legal action. You may choose to

pursue criminal charges, civil litigation, or both. If you believe the situation warrants the

involvement of law

enforcement, contact the local

police department and report

your suspicions. You may

also contact the State of

Louisiana Governor’s Office

of Elderly Affairs and request

an investigation into the

alleged abuse and neglect.

Your best option, however, is

to contact an elder law

attorney as soon as possible. An elder law attorney can help you petition for guardianship

is necessary as well as pursue a civil lawsuit for negligence against the facility, agency,

and/or individuals responsible for the abuse and/or neglect your loved one has suffered.

REFERENCES:

National Center on Elder Abuse, Home

National Center on Elder Abuse, Fact Sheet

National Center on Elder Abuse, Abuse of Residents of Long-Term Care Facilities

State of Louisiana, Adult/Elderly Protective Services

Louisiana State Legislature, 15:1501-1511, Adult Protective Services Act

Elder Abuse and Neglect in Louisiana – Part II broussard-hart.com

9

About Broussard & Hart, LLC

If you or a member of your family has been seriously

or fatally injured in an accident or as a result of

medical malpractice, you have experienced and

continue to experience trauma and grief. During this

difficult time, as you struggle with medical,

emotional, and financial issues, you will need to make

decisions that will permanently affect your ability to

take care of yourself and your family.

At Broussard & Hart, L.L.C., our Lake Charles law

firm staff and lawyers are focused on helping those

who, like yourself, have suffered losses to

catastrophic injuries or wrongful death, working to see

that they recover the compensation they need and

deserve. Our efforts stem from a genuine concern for

those we serve.

Our firm is prepared to handle a wide variety of

personal injury claims, including those involving medical malpractice, trucking accidents, 18-wheeler

accidents, and maritime law. After our Louisiana attorneys have reviewed your case they will give you

an honest assessment of your options. If you would like to schedule a free, confidential consultation with

our law firm in Lake Charles, please contact our office.

1301 Common Street

Lake Charles LA 70601

Phone: 337-439-2450

Website: http://broussard-hart.com