Nursing Home Malpractice

by Ira M. Leff, Esq.

June 8, 2009

As an Elder Law attorney, I periodically counsel clients about problems that arise with the quality of their nursing home care. In many cases, it is nearly impossible to prevent the decline of fragile, compromised patients. But in some cases, the complications clearly were caused by the negligence of the provider.

In those cases, I help my clients file a complaint with the Office of Regulatory Services (ORS). ORS investigates every complaint and has the ability to sanction the providers if they have violated State or Federal Regulations. The Long-Term Care Section can be reached at (404) 657-5850.

If the breach resulted in significant damage to the resident, I often associate a malpractice expert. While there is an aggregate cap on damages of $350,000 for all health care providers, $350,000 for each medical facility and $700,000 for all medical facilities, often these cases are still worthwhile bringing. O.C.G.A. § 51-13-1.

My litigators tell me that this statute may not be constitutional. At least one Superior Court Judge (Marvin Arrington, Fulton County) has so held. Unfortunately, the Georgia Supreme Court has not yet ruled on the issue.

Moreover, the statute only applies to medical malpractice. What if a nursing home allowed a demented resident to elope from the facility? What if a resident fell out of bed because the staff forgot to put up the bed rails? Is that medical malpractice or ordinary negligence? If it is not medical malpractice, then the cap does not apply.

If any of you have questions about nursing home malpractice, I would be delighted to discuss them with you or to refer you to my litigators.

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