An injury to a nursing home resident may create a cause of action against the nursing home. In an action for negligence, the plaintiff must show that the nursing home had a duty to the patient which was breached, and that the injury sustained was proximately caused by that breach. The duty owed or standard of care required of a nursing home is the degree of care, skill, and diligence normally exhibited generally by nursing homes in the community.

Under Georgia law, residents of nursing homes or long-term care facilities have a Bill of Rights. The intent of the law is to ensure that each resident of a nursing home receives care, treatment, and services which are adequate and appropriate. The law also demands that the care, treatment, and services must be provided with reasonable care and skill, in compliance with applicable laws and regulations, and always with respect for the person's dignity and privacy.

Under the Bill of Rights, nursing homes may also be liable for restraining their patients. Georgia law provides that residents have the right to be free from unnecessary chemical and physical restraints. Nursing homes may not use restraints to keep a patient restrained for the convenience of the nursing home employees or for discipline.

Georgia law also requires adequate staffing levels. Nursing homes must have as many employees on duty at all times as necessary to properly safeguard the health, safety, and welfare of the residents. The home must maintain a ratio of one staff person per fifteen residents during waking hours, and one staff person per twenty-five residents during non-waking hours. Georgia nursing homes must also hire an organized professional staff consisting of at least one physician, one dentist, and one registered nurse. Adequate staffing is often determined by examining documents such as schedules and payrolls.

When there is a violation under the Bill of Rights, Georgia law allows a resident to bring an action to recover actual and punitive damages. If a violation is found, the resident shall be awarded the actual damages or $1,000, whichever is greater. The resident may also be awarded punitive damages. A resident also has the right to bring any other possible causes of action he may have by statute or at common law.

When a nursing home violates a statute, the injured resident may also sue under a theory of negligence per se. A showing of negligence per se establishes a presumption of negligence on the part of the defendant. Negligence per se requires that the plaintiff falls within the class of persons the statute was intended to protect and that the harm complained of was the same harm the statute was intended to guard against. The violation must also be the proximate cause of the plaintiff's injury for the plaintiff to succeed.

There are a variety of other actions an injured resident can bring against a nursing home depending on the specific facts of the case. A nursing home may be liable for negligent hiring, retention, and supervision of its employees. In cases of violence, a plaintiff must show that the employer knew or should have known of the employee's violent or criminal propensities to engage in the conduct which caused the plaintiff's injuries. In incompetence cases, the plaintiff must show that the employer knew or should have known that the employee was incompetent and that the incompetence caused the injury. Evidence such as a criminal history or prior sanctions may help to show that an employer committed negligent hiring or retention.

Georgia law requires that nursing homes must conduct criminal background checks, and it forbids the hiring of those applicants who have been convicted of certain crimes. When there is an alleged violation involving mistreatment, employees of the facility must immediately report the abuse to officials. The facility must then thoroughly investigate all alleged violations and work to prevent any further abuse.

Nursing homes may also be liable for the actions of their employees for simple negligence or professional negligence when a resident sustains an injury in the course of treatment. Simple negligence typically involves administrative or clerical acts that do not involve professional judgment, and thus, an expert is not required when bringing suit. On the other hand, professional negligence calls into question the conduct of a professional, such as a doctor or nurse. Professional negligence requires an expert to testify that the professional's conduct fell below the standard of care. Professional malpractice is commonly seen in cases of medication errors, falls, decubitus ulcers, burns, allergic reactions, infections, and the improper assessments of residents' physical and mental conditions.

A nursing home may also be liable for criminal acts of third parties. Under Georgia law, a property owner can be found liable for criminal attacks if he or she had reasonable grounds to believe that a criminal act would occur and failed to safeguard against it. To show that a property owner had grounds to believe an attack would occur, the victim needs to show that there were prior crimes on or near the property that were substantially similar. These prior crimes do not have to be identical, but they must attract the attention of the owner to the dangerous condition that led to the victim's attack. Factors such as the location, nature, and extent of the prior crimes will determine if the owner should have taken steps to prevent another attack from occurring.

A nursing home may also be found liable when one resident attacks another resident. When the attacker has a history of prior altercations with other residents in the home, the nursing home may be liable since it knew of these dangerous propensities. While nursing homes may not be able to restrain such residents due to the resident's Bill of Rights, a nursing home should take steps such as making sure the resident cannot venture into places where physical altercations may occur. A nursing home may also take steps to relocate the resident to an area with increased staffing, or consult with a psychiatrist for direction. A failure to take alternative forms of management against an aggressive resident may result in liability.

In some cases, a nursing home may be liable for intentional torts such as assault and battery committed by its employees on a theory of respondeat superior. Generally, the plaintiff must prove two elements to succeed on this theory. First, the employee must be acting in furtherance of the employer's business. Second, he must be acting within the scope of his employer's business.

The damages that a plaintiff may seek depend on the facts of the case and the theory under which a plaintiff sues. Damages are generally broken into two categories: special and general. Special damages are those damages which the plaintiff actually sustained as a consequence of the alleged acts such as medical bills, lost profits, and loss of employment. The plaintiff must plead these losses fully and distinctly. The amount of special damages is important, because it provides the jury with a way to measure general damages. General damages include such damages as pain and suffering, and the plaintiff does not have to state a specific amount to be awarded. If a death occurs, a plaintiff may also seek to recover for the wrongful death of his or her decedent. The measure of a wrongful death recovery is the full value of the life of the decedent. Punitive damages may also be appropriate.

A nursing home may have many potential defenses when defending a lawsuit. These defenses will depend on the specific facts and theories alleged. If professional negligence is alleged, the nursing home may provide its own expert to testify that the requisite standard of care was met at all times. In negligent hiring cases, the defendant may show that they had no notice that an employee had any prior history which would suggest he was dangerous or incompetent. In respondeat superior cases involving the intentional tort of an employee, the nursing home will most likely argue that the intentional act did not further their business nor was it within the scope of employment.

It is important to note that a resident may have more or different options in pursuing an assisted living case. The complexity and seriousness of liability for injuries which occur in nursing homes underscore the necessity of an experienced Georgia lawyer who will fight for your rights and interests.

The information provided above is a very general summary of the law regarding this particular legal issue at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult with a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all Georgia state and federal courts.