Resident Rights Litigation

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By Anthony Chicotel, Esq.

Resident rights generally fall into two categories: personal rights and rights guaranteeing good care. Nursing home residents maintain several personal rights related to individual concerns and the ability to control their care. Rights of individual concerns include such guarantees as the right to unopened mail, private telephone access, and visitation. Other personal rights protect residents from evictions from their homes. Rights related to the ability of residents to control their care include the right to be informed of all care and treatment decisions, the right to determine all treatment decisions (unless adjudicated incapacitated under state law), and the right to choose a personal attending physician. Among rights guaranteeing good care, residents have the right to a sufficient number of staff members to meet their care needs and an activity program designed to restore or maintain independence.

While the law recognizes many important rights for nursing home residents, residents and their loved ones are nonetheless commonly subjected to violations. The recognition of resident rights by nursing homes often require consumption of the facility’s resources in time or money— resources that they are loathe to spend. The Department of Health Services’ Licensing and Certification Division is the state agency charged with enforcing resident rights in nursing homes. Unfortunately, the agency is often slow or ineffectual in investigating residents’ complaints. Therefore, residents must take special care to learn their rights and be steadfast in exercising them.

When confronted with a potential rights violation, nursing home residents or their loved ones have many options for resolving the problem. One option is to file a formal written grievance with the facilitys administrative staff. Another option is to call the local Ombudsman Program. Each county has a designated Ombudsman to advocate for the needs and concerns of nursing home residents. The Ombudsman is usually supported by a number of paid and volunteer staff specially trained to resolve such issues. Another option is to call the Licensing and Certification Division. While the agency is often slow, it does exercise great influence on individual nursing homes.

If the above options prove unsatisfactory or the rights violation is particularly serious, California nursing home residents have the express ability to enforce their rights in court. California Health and Safety Code section 1430(b) allows residents to not only sue to stop violations of their rights, but also to collect money damages of up to $500 for each violation. The court will also order the offending facility to pay the resident’s attorneys’ fees. Residents of many other states are not legally allowed to sue for enforcement of their rights, making Health and Safety Code section 1430(b) a uniquely powerful tool for ensuring personal freedom and good quality care in California nursing homes.

If you would like more information regarding resident rights or would like to discuss a potential rights violation, please contact CANHR for assistance at (800) 474-1116.