Is it a crime, for Virginia Nursing homes to abuse or neglect patients?
YES. Virginia Code Section 18.2-369, states:
- It shall be unlawful for any responsible person to abuse or neglect any incapacitated adult as defined in this section. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect does not result in serious bodily injury or disease to the incapacitated adult is guilty of a Class 1 misdemeanor. Any responsible person who is convicted of a second or subsequent offense under this subsection is guilty of a Class 6 felony.
- Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in serious bodily injury or disease to the incapacitated adult is guilty of a Class 4 felony. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in the death of the incapacitated adult is guilty of a Class 3 felony.
The code goes on to define Abuse as “knowing and willful conduct that causes physical injury or pain,” and Neglect as “the knowing and willful failure by a responsible person to provide treatment, care, goods or services which results in injury to the health or endangers the safety of an incapacitated adult.”
So yes, it is a Crime in the Commonwealth to KNOWINGLY or WILLFULLY injur or refuse to care for someone in a nursing home.
So, are Nursing home owners and staff often prosecuted for abuse or neglect in Virginia?
NO. I cannot find a single case where a nursing home staff person was charged with criminal abuse or neglect. And why is this?
A few reasons.
It is difficult to claim a staff person acted intentionally. In Civil suits you only have to prove that the health care fell below the standard of care, not that they doctor or nurse intended to provide bad care, or abuse the person.
The other reason is that local police don’t like these cases. I have had a few clients tell me that various police departments are investigating cases against nursing homes, and not one has ever even made it to the Commonwealth Attorney. I tell the clients every time, not to expect ANYTHING from the criminal investigation. Even Adult Protective Services may find abuse and neglect, and no charges are ever brought.
Virginia is not alone. Although there are occasionally criminal charges brought in nursing home abuse and neglect cases, those are usually in sexual assault cases where the act is clearly intentional.
So is it good or bad that facilities are not criminally prosecuted in Virginia?
I leave that answer up to our clients.
There is one case from SW Virginia where a daughter was sent to jail for two years for allowing her mother to starve to death. We have seen and handled dehydration and malnutrition cases, wherein trained nurses and doctors let someone starve. So what is the difference?
Frith law firm handles civil suits against nursing homes for abuse and neglect. You will not likely shut the nursing home down. I doubt you can get certain staff members fired. I know you won’t be able to get criminal charges brought, but maybe, just maybe, forcing staff to attend depositions and defend their level of care, will make them think twice next time. Maybe just maybe, they will provide the care they should have provided all along.