September 9 , 2021 | Nursing Home Neglect and Abuse
At first blush, these two torts, false imprisonment, and nursing home neglect appear to have almost nothing in common. But they have much in common. Fundamentally, in both situations, the tortfeasors (negligent actors) force the victims to remain in unsafe environments that greatly increase the likelihood of injury.
False imprisonment in Wisconsin involves more than wrongful arrests, although such incidents dominate the headlines. In some cases, the false imprisonment could last years or even decades before innocent defendants are exonerated. Other examples of false imprisonment include restricting telephone access, blocking a person’s paths, or otherwise restricting their liberty against their will. Force is not necessarily an element of false imprisonment. Deception or threat could be sufficient.
Nursing home neglect, which is a similar tort, is obviously restricted to long-term care facilities. There is a significant difference between nursing home abuse and nursing home neglect. Abuse, such as physical or emotional abuse, is an intentional tort. However, abuse is not necessarily malicious. Neglect, which basically means a lack of care, manifests itself in various ways.
The Wisconsin false nursing home abuse attorneys at Martin Law Office, S.C. routinely handle false imprisonment in nursing homes and other negligence cases as well, throughout the state. We stand up for victims’ rights and punish negligent actors, so Wisconsin is a better place to live for everyone.
Elements of a False Imprisonment Claim
The basic elements of a false imprisonment claim are usually present in many domestic disputes and employer/employee disputes when tempers get somewhat out of control. These elements are:
- Willful Detention: In Legalese, “willful” is one step above “intentional.” The I-word basically means non-accidental. This distinction often comes up in assault claims. Assault is an intentional, as opposed to a willful, act. To look at it another way, “willful” is one step shy of malicious.
- Bounded Area: Geographically speaking, every spot on Earth is a bounded area. There’s only so far a person can travel on foot. In this context, a bounded area usually means a single room, building, or enclosed outdoor area. However, the term is quite subjective.
- Without Consent: Usually, consent is a voluntary, affirmative act. However, knowledge is usually the key element. If a person knows s/he is restricted and doesn’t try to get out or even protest, the person probably consented. However, that behavior could also be assent, which is different from con
- Without Authority: Police officers may detain people if they have reasonable suspicion and arrest them if they have probable cause. Wisconsin and most other states limit so-called citizens’ arrests to felonies and some misdemeanors. Many Wisconsin courts also recognize the shopkeeper’s privilege. This privilege allows some merchants to detain shoplifting suspects in some situations.
Additionally, some false imprisonments, such as a nursing home confining patients to their rooms, are lawful in some situations.
Examples of Nursing Home Negligence
As mentioned, negligence is basically a lack of care. Typically, owners of nursing homes have a duty of reasonable care. Initially, they must ensure that premises which are about to be open to the public are safe. Thereafter, they must conduct frequent safety inspections.
This high duty applies because nursing home residents are invitees in Wisconsin. These individuals have permission to be on the premises and their presence benefits the owner. In this case, that benefit is economic. In some other cases, the benefit is noneconomic, such as the benefit of social interaction.
If the owner’s level of care falls below the acceptable legal standard, a number of injuries could happen to nursing home residents, such as:
- Assault: Usually, assault is an intentional tort. But resident-on-resident assault is different. Many nursing home residents are much like small children. Petty disagreements become violent. The nursing home has a legal responsibility to break up these fights before injury occurs.
- Bedsores: Unusual pressure on the body, usually in bony areas, causes these open sores. So, as long as staffers turn residents every couple of hours, pressure ulcers are not a problem. But at many understaffed nursing homes, regular patient rounds only happen sporadically.
- Falls: In many cases, understaffing also leads to falls. Many residents have poor vision. They cannot see hazards like construction areas or large sidewalk cracks. So, residents depend on nursing home staffers to redirect them. Such staffers usually aren’t present if the facility is understaffed. Falls are the most common nursing home neglect injuries. Over half of long-term care residents sustain serious fall injuries every year.
- Malnutrition: Continuing this idea, understaffing often causes malnutrition problems. When we get older, our senses degrade. Since food no longer tastes, smells, or looks good, many people do not eat. Most nursing homes do not have dieticians or other staffers who ensure that’s not true, which is why about a fifth of all nursing home patients are malnourished.
Additionally, a Wisconsin false imprisonment attorney must prove that the owner knew, or should have known, about the hazard which caused the injury. This evidence might be direct or circumstantial. A smoking gun like a restroom cleaning report or a prior similar incident serves as direct evidence of actual knowledge. Circumstantial evidence of constructive knowledge (should have known) usually involves the time-notice rule. If a hazard existed for a long time, the owner should have known about it and addressed it.
Proving Negligence in Court
The burden of proof in both false imprisonment and nursing home negligence cases is usually a preponderance of the evidence, or more likely than not. That’s the lowest standard of proof in Wisconsin law. So, in terms of proving negligence, a little proof goes a long way.
However, the evidence must be strong enough to withstand some common insurance company defenses, such as comparative fault. This legal doctrine basically shifts blame for the accident from the tortfeasor to the victim. For example, if Sally falls at a nursing home, the insurance company might argue that she did not adequately watch where she was going.
Sensory degradation, which was mentioned above, is often an effective response. This sensory degradation includes vision. So, an open and obvious hazard to a young person might not be open and obvious to someone like Sally.
Reach Out to a Compassionate Milwaukee County Attorney
Generally, whenever there is a wrong, a legal remedy is available. For a free consultation with an experienced false imprisonment lawyer in Wisconsin, contact the Martin Law Office, S.C. at 414-856-4010. You have a limited amount of time to act.