Hold Abusers of Disabled Accountable

taking actions against developmentally disabledIf a disabled person is a victim of sexual abuse, physical abuse, verbal abuse or neglect, how can they recover economically for the harm done to them?

If the disabled man or woman is the victim of a crime, they can:

• Contact a local victim assistance organization in their county who will direct them to available resources.

• Contact the state of Ohio at 1-800-282-0515 or 614-466-4986 Monday through Friday from 8 a.m. to 7 p.m. and tell them you are a victim of crime calling about crime victim services

• Go on to the website: ohioattorneygeneral.gov/About-AG/Organizational –Structure/Crime- Victim-Services. This site will tell you about victim compensation and provide forms for the victim to fill out. It also has information about grants to local victim assistance providers and offers a program so that victims will not have to pay for medical exams in connection with the crime against them.

• Seek legal help if they choose to pursue a case against the perpetrator.

Regardless of the result of any criminal prosecution, or even if there was none, crime victims do have the option to file a civil suit against the offender and other parties deemed responsible for what happened. Unlike the criminal justice system, the civil justice system does not attempt to determine the guilt or innocence of the offender. Instead, civil courts try to ascertain whether an offender or third party is liable for injuries sustained. In some cases, both the offender and a third party maybe at fault. If defendants are found civilly liable, the court may order them to pay monetary damages to the victim.

Injury Claims Have Three Parts

Every personal injury claim has three parts:

• Property damage

• Economic losses and

• Non-economic losses

Property damage is usually pretty straightforward and is often associated with a claim made in an automobile accident, but if property damage is an aspect of the crime against an individual, it should be documented and should be part of the legal recovery sought.

Economic losses are the actual and future costs associated with your injury. For example, if your arm was permanently damaged and you are a house painter, you could recover for both actual and future costs of not having full use of your arm for the rest of your life to perform your job. Economic losses are supported by bills, statements and estimates supplied by professionals and include doctor bills, hospital bills, emergency service bills, cost for household services you can no longer perform yourself, cost for medical equipment and prescription medicine, physical therapy fees, lost wages and income, future medical expenses and future lost wages and income. Future estimates of costs and losses should be calculated by a professional and reduced to a present value.

Non-economic losses involve emotional trauma and alterations to your lifestyle as a result of the injury you sustained. These losses are complex and are difficult to prove. Non-economic losses include the following:

• Pain and suffering as a result of the injury or injuries

• Mental anguish and anxiety caused by the injury

• Loss of society and companionship

• Inability to perform tasks that could be performed before the injury

• Changes in lifestyle resulting in the loss of enjoyment of life

• Disfigurement

• Loss of a body part or use of a body part

Another sometimes difficult aspect to tallying non-economic losses is that they are not always apparent after an injury. Most people cannot immediately evaluate the full impact of all of the harm done to them on a physical, mental and emotional level.

If you decide to seek legal help, an attorney will want to know what damages you sustained including any damages to your property. He or she will discuss medical information with you and ask about the degree of physical, emotional and psychological injuries and the cost of anticipated treatment. You will be asked to identify any hospitals or physicians’ services where you sought care and about any lost time from work and what wages you have lost and may lose in the future.

It is also likely the attorney will ask you about the criminal event and the perpetrator and whether the perpetrator is known to you.

According to disabilityscoop.com, some 38 states in the U.S. serve at least 80 percent of people with developmental disabilities, and as of 2012, almost 317,000 disabled people are on waiting lists for services. Because of this shortage, it should be no surprise that patient abuse and neglect goes unreported and when care facilities commit violations, those responsible are often not held accountable.

In 2013, more than 2,000 people with disabilities across Ohio were reported victims of abuse ranging from physical and sexual assaults to neglect, according to a News Channel 5 (Cleveland) six-month investigation. The Ohio Department of Developmental Disabilities (ODODD) substantiated that there had been 76 cases involving sexual abuse, 373 of physical abuse and 1,072 cases of neglect. This is a total of almost 500 cases for which the state could not find significant evidence.

Poor Records of Compliance

In the same investigation by the Cleveland TV station, it was found that hundreds of Ohio service providers for the disabled repeatedly ignore health and safety violations. Of 1,587 compliance reviews of service providers in 2013, which were performed by (ODODD), 600 providers failed to follow state regulations. This is nearly 40% who could not meet the standard. Many of the compliance violations included service providers who failed to check criminal backgrounds of employees.

Despite this poor result in complying with regulations, only 28 service providers had their certifications revoked that year, according to Channel 5. During the Channel 5 investigation inspection reports and other documents from service providers for the disabled revealed how some have died while in the care of facilities that remain in business.
“It’s really hard to close a place down,” said a representative for Disability Rights Ohio.

Families of those with disabilities say they are left in the dark when it comes to learning how service providers are caring for their loved ones. Since the Channel 5 report, legislation has been passed in Ohio enabling online searches of the results of compliance reviews. It appears necessary to obtain a password from ODODD in order to do such a search.

Civil Penalties Could Affect Licensing

Service providers are faced with various levels of civil penalties under Ohio Administrative Code 5122-33-26 based on the gravity of a violation and the severity of actual or potential harm to residents of a care facility. Actions by the facility owner or manager to correct the violation and the number of previous violations of the same rule also determine the violation’s classification (Class I, II or III) and the amount of financial assessment for the violation.

Class I violations are conditions or occurrences that present an immediate and serious threat to the physical or emotional health, safety, or security of residents of an adult care facility. Those determined to have committed a Class I violation are subject to a penalty of not less than $700 and not more than $1,000 for each violation. There are 12 areas of violation in Class I which deal with adequate food, fuel, electricity and temperature of the hot water in the facility. Use of physical restraints, malfunctioning smoke detectors or fire extinguishers, danger of building collapse and extreme temperatures are also covered under this class as well as certain staffing requirements and abuse or neglect of a resident.

Class II violations directly threaten the physical or emotional health, safety or security of residents and a violation is punishable by not less than $500 or more than $700 for each infraction. There are 14 areas here which constitute a Class II infraction. Unsanitary or unsafe living conditions, contaminated food or water and violating a resident’s right under OAC 5122-33-23 which directly results in physical or emotional harm are all Class II violations. Failure to provide acceptable personal care standards, failure to provide three nourishing meals a day, failure to have a resident’s mental or physical health promptly assessed and misappropriation of a resident’s funds are also covered under Class II. Failure to follow appropriate infection control procedures and making sure that employees under the influence of alcohol or illegal drugs do not threaten the health, safety and security of care facility residents is another concern here.

Class III violations indirectly or potentially threaten the physical or emotional health, safety or security of residents and violations are subject to a penalty of not less than $100 for each violation and not more than $500. Examples of violations here involve 10 areas. The facility cannot interfere with an authorized inspection of the building or admit or retain more residents than permitted. The facility must maintain its electrical and heating system in safe operating condition as well as fire protection systems including having regular fire drills. The facility must provide adequate furnishings, supplies and food at the facility and maintain correct health assessments on all residents and a correct mental health plan under Class III.

Major Unusual Incidents Must Be Reported

Under Ohio Administrative Code 5123-2-17-02, Major Unusual Incidents (MUIs) in a facility must also be reported to the local county board of DD. Nineteen types of incidents are defined in the rule. They are alleged, suspected or actual occurrences that adversely affect the health and safety of an individual.

According to state law, all incidents require that immediate action be taken to protect persons from further harm. An investigation must be conducted to determine the cause of the incident and contributing factors. A prevention plan must be put in place to prevent the likelihood of future occurrences.

We Can Help

If you have a loved one who is being abused by a caregiver, please contact us for a free, private and confidential consultation. A free consultation is just that – Free. You will be charged nothing whatsoever and you are under no obligation to hire our law firm. Free and private consultations are a courtesy we provide anyone so they can get the professional legal advice they need.

To schedule a free consultation, please contact us by calling 1-888-283-0737, chat with one of our 24-hour live chat representatives or send us a website message.

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