Successful Nursing Home Abuse Lawsuits in NYC

People with aging or elderly family members often find themselves in a precarious position that requires their elderly family members to live in a nursing home.  In a perfect world, these elderly people could live with their younger family members, but the sad reality is that ordinary people are often totally unequipped to address the needs of their loved ones as they age.

People placed in this situation turn to nursing homes to ensure that their loved ones receive the care they deserve.  In doing so, they entrust some of the most important people in their lives to the nursing home.  Many such nursing homes are run by good, qualified people who desire to take care of elderly people at the end of their lives, but there are still far too many horror stories coming out of nursing homes.

There are relatively few studies that focus on elder abuse in the context of nursing homes.  However, a study published in the Journal of Elder Abuse found that 24.3% of the 452 adults sampled reported at least one incident of physical abuse by nursing home staff.[1]

Nursing homes must be held accountable for this horrific behavior.  If your loved one has been victimized by a nursing home’s abusive conduct then reach out to the New York nursing home abuse lawyers at Dansker & Aspromonte.  You can schedule a free consultation with our attorneys by calling us at (516) 774-3988 or by reaching out to us through our online portal, which is linked here.

Defining Nursing Home Abuse

The first step in a productive discussion of New York nursing home abuse lawsuits is to define what we mean when we discuss “nursing home abuse.”  The definition of nursing home abuse will, to an extent, coincide with the definition of “elder abuse.”  After defining the term, this article will discuss ways to spot or prevent nursing home abuse.

The Most Common Types of Nursing Home Abuse

The following is a list of the many types of abuse that elderly people may suffer in nursing homes[2]:

1. Physical Abuse: This term is used to describe any non-accidental use of physical force that results in bodily injury, pain, or impairment. According to a 2019 meta-analysis by Yon et al., approximately 9.3% of older adults in institutional settings experience physical abuse.[3]
2. Sexual Abuse: Any type of nonconsensual sexual contact is considered sexual abuse. Sexual abuse of the elderly is relatively rare in comparison to the other types of abuse that occur in nursing homes.[4]
3. Emotional/Psychological: Studies vary, but one 2019 review estimates the prevalence of emotional or psychological abuse in nursing homes at around 64.2%—making it the most commonly reported form of elder abuse in the nursing home context.[5] This type of abuse is defined to mean the willful infliction of mental or emotional anguish by threat, humiliation, or intimidation and can include other behaviors such as treating the older adult like a child, isolating them from family and friends, or interrupting their regular activities.[6]
4. Financial Abuse: 13.8% of nursing home abuse cases involve some type of financial abuse.[7] This type of abuse can be complex, but it boils down to any unauthorized use of or theft of funds, property, or resources belonging to the older person for one’s own gain or advantage.[8]  This is one of the fastest growing forms of elder abuse, and common examples include (1) misusing the ATM, credit cards, or bank account belonging to the elderly person, (2) the appropriation of pension or benefit checks, (3) consumer fraud and other scams, and (4) illegal transfer of the elderly person’s property.[9]

Neglect

All of the different types of abuse listed above are intentional abuse, but neglect is another critical form of abuse that commonly occurs in nursing homes.  Neglect is defined to mean either the willful or non-willful failure of a nursing home resident’s caregiver to fulfill his or her care-taking duties or responsibilities.[10]  The failure or refusal to provide care for an elderly person is also a form of neglect when the person owes a duty to provide such care.[11]

How to Spot Nursing Home Abuse

Nursing home residents are common targets for abuse for several reasons.  First, nursing homes are frequently understaffed—leaving a dearth of available staff to assist the elderly person.[12]  Second, the responsibilities are often assigned improperly, with the lowest paid staff member at the nursing home being left to provide care for more residents than time permits.[13]

Nursing home abuse can be difficult to detect because many symptoms of abuse are attributable to disease, medical conditions, or medications common to elderly people.[14]  The American Psychological Association[15] (the “APA”)  says the following are signs of abuse:

1. unexplained bruises, burns, cuts, or scars;
2. lack of basic hygiene, food, or water;
3. unclean or inappropriate clothing;
4. lack of medical aids such as glasses, walkers, dentures, hearing aids, or medications;
5. unexplained weight loss;
6. untreated bedsores;
7. dismissive attitude or statements regarding injuries;
8. unreasonable fears or suspicions from the abuse victim;
9. disinterest in social contacts;
10. unexplained changes in behavior;
11. unexplained vaginal or anal bleeding in cases of sexual abuse;
12. in cases of sexual abuse, venereal disease or vaginal infection;
13. signs of insufficient care or unpaid bills—despite having adequate financial resources; and
14. large withdrawals from bank accounts or other unusual ATM activity.

Legal Framework for Nursing Home Abuse Cases

NYC Laws

New York has adopted a bill of rights for all nursing home residents.[16]  That bill of rights must be posted publicly in every nursing home and in every facility that provides health-related services.[17]  This bill of rights explicitly grants nursing home residents the following non-exhaustive list of rights:

1. the right to have private communications and consultations with his or her physician, attorney, or other person;
2. the right to present grievances to the facility’s staff or administrator, to government officials, or to any other person without fear of retribution;
3. the right to manage his or her own financial affairs, or to have a quarterly accounting of any personal financial transactions undertaken on his or her behalf;
4. the right to receive adequate and appropriate medical care and to be fully informed of his or her medical condition;
5. the right to courteous, fair, and respectful treatment from the facility; and
6. the right to be free from mental and physical abuse, which explicitly enumerates their right to be free from physical and chemical restraints.

If a nursing home deprives one of its residents of any right or benefit created or established for the patients’ benefit by either state or federal statute, code, rule or regulation then that nursing home will be liable to the patient for the injuries resulting from the deprivation of that right.[18]  New York law defines the term injury generously: an injury to a nursing home’s resident can be physical harm, emotional harm, death, or financial loss.[19]  Thus, there are many different types of harms that are compensable in a lawsuit alleging injury caused by a violation of the Bill of Rights.

The Elder Justice Act

The Elder Justice Act is the first piece of federal legislation to address the abuse, neglect, and exploitation of older adults.[20]  This law provided federal funding for programs and initiatives intended to respond to elder abuse, prevent innovation and advance elder justice, support Adult Protective Services, and provide additional protections for residents in nursing homes.

What follows are a few of the benefits and protections implemented through the Elder Justice Act for the benefit of nursing home residents:

1. incentivizes people to train for, seek, and stay in jobs providing long-term care to nursing home residents;
2. provide bonuses and other compensation increases to employees who get certified to work in nursing home; and
3. establish new accountability measures for nursing homes receiving program funds.[21]

The aforementioned accountability measures for the Elder Justice Act include a new obligation on the part of owners, operators, employees, managers, agents, and contractors for long-term care facilities to report “any reasonable suspicion” they have that a crime has been committed against a resident of their nursing home.[22]

These reporting obligations are specific:

1. mandatory reporters must make their report no more than twenty-four (24) hours after developing their reasonable suspicion (or within two (2) hours if serious bodily injury has occurred); and
2. mandatory reporters must make their reports to a law enforcement agency in their jurisdiction.
   Note: There may be exceptions if the abuse is discovered late or other extenuating circumstances exist.[23]

How to Report Nursing Home Abuse

The first thing to do if you suspect that someone you know is being abuse or neglected is to try to talk to the older person when the two of you are alone.  Every state has a service designated to investigate allegations of elder abuse and neglect.[24]  If you see the signs then you should report it to the appropriate agency.

To report a case in New York, contact the Bureau of Adult Services of the New York State Office of Children and Family Services.  Their website is linked here for anyone who needs it.

What to Do If You Suspect Nursing Home Abuse

Nursing home abuse is often difficult to detect because the signs of nursing home abuse are often common symptoms found in elderly people generally.  However, there are tangible steps you should take if you believe an older person in your life is being abused, including:

1. Documentation: Take notes of any visible or known injuries, changes in the person’s behavior, and any poor living conditions you see. Make sure to write down the dates, times, and descriptions of incidents you saw.
2. Contact Facility Administration: Report the incidents to the facility administration, who are required to address complaints and investigate incidents under New York law.
3. Contact the New York State Department of Health (the “NYSDOH”): Every state has a department or agency that regulates nursing homes, and filing a complaint with the NYSDOH will trigger an investigation into the nursing home at issue.[25]
4. Submit a Report to the Center for Medicare & Medicaid Services (“CMS”): Complaints may be filed with the CMS against facilities that receive funding from either Medicare or Medicaid. CMS is responsible for overseeing nursing home compliance with federal regulations.[26]
5. Stay Involved: It is crucial to stay involved in an older person’s life—especially if you suspect that he or she is being abused. You can do this by (1) visiting frequently and at different times of the day, (2) encouraging other friends and family members to check in regularly, & (3) advocate for better policies, staff training, and oversight within the facility.
6. Seek Legal Help: Sadly, addressing these issues with agencies and staff may not be enough in some cases, and you will need to seek legal help to resolve the issue. If you are in need of experienced representation to protect your loved one or recover damages on their behalf then you should contact the New York nursing home abuse lawyers at Dansker & Aspromonte by calling us at (516) 774-3988 or by using our online portal, which is linked here.

Navigating the Legal Process

There are three common steps in the legal process and a fourth less common step.  Each will be discussed below.

1. Filing the Suit

A person who files a lawsuit—referred to as a “plaintiff”—will be required to navigate the labyrinthian process that is the American legal system.  This step is commonly referred to as “filing” because it is the filing of a document called a complaint that initiates a legal proceeding.[27]  The complaint that is filed must tell the defendant what happened with enough particularity to give them notice of the events that are the basis of the lawsuit.[28]

However, an attorney cannot simply file your case immediately after your initial consultation.  Rather, the attorney is required to investigate the case and gather evidence to ensure that the case can be proved in court after the complaint is filed.

2. Discovery

Discovery is the second phase of any nursing home case.  The effective use and management of discovery tools under the New York laws governing civil litigation can make-or-break a case.  Discovery laws in New York require the full disclosure of all materials that are necessary and allow the parties to take of depositions, require the production of documents, require the other party to answer written interrogatories, and even to subject a party to a full physical or mental examination.[29]

3. Negotiations

Dealing with insurance companies and corporate representatives to negotiate a favorable settlement is the third step in these cases, and it is often the final step.  Generally, parties will negotiate a settlement in which one party agrees to pay the other party rather than take the case to a trial.

Successful negotiations obviate the risks posed to both parties at trial.  For plaintiffs, accepting a settlement offer remove the risk losing at trial and guarantee that they will receive something for the injuries to their loved ones.  Defendants benefit in a similar way: rather than risk paying an enormous jury verdict, they know their financial liability will be limited to some degree.

4. Trial: An Uncommon Step

While most cases settle, some of them will inevitably go to trial.  At that point, both parties are facing enormous risks.  Taking a case to a jury trial is time-consuming and expensive for everyone involved, and the stakes are high whenever a trial occurs.

An experienced nursing home abuse attorney will know how to give a proper opening statement, conduct efficient direct and cross examinations, and give an effective closing argument to convince the jury of their client’s injuries.  Further, these attorneys will also understand the importance of mid-trial motions practice.

Conclusion

As outlined in this article, nursing home abuse is a problem for too many older adults despite the legal protections put into place to protect this vulnerable population.  The information in this article is intended to empower readers to take action when they encounter nursing home abuse.

If you are in need of an attorney to enforce the rights of an older person in your life then reach out to Dansker & Aspromonte.  Your initial consultation comes at no cost to you.  Schedule your free consultation with our attorneys by calling us at (516) 774-3988 or by reaching out to us through our online portal, which is linked here.

[1]  Lawrence B Schiamberg, et al., Physical abuse of older adults in nursing homes: a random sample survey of adults with an elderly family member in a nursing home, J. Elder Abuse Negl. (2012), https://pubmed.ncbi.nlm.nih.gov/22206513/.

[2]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[3]  Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.

[4]  Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.

[5]  Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.

[6]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[7]  Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.

[8]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[9]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[10]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[11]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[12]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[13]  N.Y. Elder Law Practice § 1:6 (2024 ed.).

[14]  “Elder Abuse: How to spot warning signs, get help, and report mistreatment”, American Psychological Association (Updated July 8, 2024), https://www.apa.org/topics/aging-older-adults/elder-abuse.

[15]  “Elder Abuse: How to spot warning signs, get help, and report mistreatment”, American Psychological Association (Updated July 8, 2024), https://www.apa.org/topics/aging-older-adults/elder-abuse.

[16]  N.Y. Pub. Health Law § 2803-c (McKinney).

[17]  N.Y. Pub. Health Law § 2803-c (McKinney).

[18]  N.Y. Pub. Health Law § 2801-d (McKinney).

[19]  N.Y. Pub. Health Law § 2801-d (McKinney).

[20]  42 U.S.C.A. § 1397j-1 (2010); Administration for Community Living, “The Elder Justice Act” (accessed February 1, 2025), https://acl.gov/about-acl/elder-justice-act.

[21]  42 U.S.C.A. § 1397m (2010).

[22]  42 USCA § 1320b-25.

[23]  42 USCA § 1320b-25.

[24]  “Elder Abuse: How to spot warning signs, get help, and report mistreatment”, American Psychological Association (Updated July 8, 2024), https://www.apa.org/topics/aging-older-adults/elder-abuse.

[25]  N.Y. Pub. Health Law § 2896 (2025).

[26]  Social Security Act, 42 U.S.C. § 1395aa (2020); 42 U.S.C. § 1395i-3 (2021); 42 U.S.C. § 1396r (2021).

[27]  NY CPLR § 3011 (2023).

[28]  NY CPLR § 3013 (2023).

[29]  NY CPLR § 3101; NY CPLR § 3106; NY CPLR § 3130; NY CPLR § 3120; NY CPLR § 3121; NY CPLR § 3123.