Nursing Home Neglect in Georgia: Bedsores, Malnutrition, and Accountability

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When a nursing home resident develops pressure sores or loses weight, the family’s first question is what the facility was supposed to do. Federal rules for long term care facilities answer it directly for pressure ulcers and nutrition, and Georgia gives residents statutory rights and a cause of action when a facility fails to honor them. Two procedural questions then shape the case: whether the claim is professional negligence that needs an expert’s affidavit, and whether an arbitration agreement signed at admission moves it out of court.

What the Facility Owes on Pressure Ulcers and Nutrition

The Centers for Medicare & Medicaid Services’ requirements for long term care facilities make quality of care “a fundamental principle that applies to all treatment and care provided to facility residents” (42 CFR 483.25). On pressure ulcers, “the facility must ensure that” a resident “receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable,” and that a resident with pressure ulcers “receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing” (42 CFR 483.25(b)(1)).

On nutrition, the facility must ensure that a resident “[m]aintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise” (42 CFR 483.25(g)(1)).

The Rights and the Cause of Action

Georgia’s residents’ rights statute provides that “[e]ach resident shall receive care, treatment, and services which are adequate and appropriate,” provided “[w]ith reasonable care and skill” and “[i]n compliance with applicable laws and regulations,” among other requirements (OCGA 31-8-108(a)). Any person aggrieved because a long-term care facility “has violated or failed to provide any right granted under this article shall have a cause of action against such facility for damages and such other relief as the court having jurisdiction of the action deems proper,” and “[n]o person shall be prohibited from maintaining such an action for failure to exhaust any rights to administrative or other relief granted under this article” (OCGA 31-8-126(a)). The section does not “preempt any other law or … deny to any individual any rights or remedies which are provided by or under any other law” (OCGA 31-8-126(f)).

The Court of Appeals applied the section as written in Thurman v. Pruitt Corp., 212 Ga. App. 766 (1994), a five-to-four decision of the full court, describing OCGA 31-8-126(a) as providing “a cause of action for damages against a long-term care facility for failure to provide certain rights guaranteed under OCGA § 31-8-100 et seq.” In McLain v. Mariner Health Care, Inc., 279 Ga. App. 410 (2006), it wrote that alleged violations of the residents’ rights “would be competent evidence of Mariner’s breach of duty under a traditional negligence action.”

Neglect or Professional Negligence

A professional malpractice claim against a nurse or another professional on the statute’s list requires an expert’s affidavit filed with the complaint (OCGA 9-11-9.1(a), (g)). The Court of Appeals draws the line claim by claim, by the kind of act at issue, so one complaint against a facility can contain claims that need the affidavit and claims that do not:

  • Professional judgment. In Brown v. Tift Health Care, Inc., 279 Ga. App. 164 (2006), claims about monitoring and medical care were “analogous to claims previously held to fall within the realm of professional medical decisionmaking.” In Williams v. Alvista Healthcare Center, Inc., 283 Ga. App. 613 (2007), giving medication “involves the professional skill and judgment of a nurse.” In Gaddis v. Chatsworth Health Care Center, Inc., 282 Ga. App. 615 (2006), a general instruction on fall precautions was “left to the medical judgment of the Chatsworth medical staff.” In Holt v. Glenwood Operating Company, LLC, No. A23A1435 (Ga. Ct. App. Feb. 8, 2024), the family’s criticism of a nursing assistant’s instructions “would transform this case into one of professional negligence requiring the contemporaneous filing of an OCGA § 9-11-9.1 affidavit.”
  • Administrative or nonprofessional acts. In Brown, claims about documenting a fall were “nonprofessional, administrative acts or omissions.” In Padgett v. Baxley, 321 Ga. App. 66 (2013), a certified nursing assistant was not a professional for purposes of OCGA 9-11-9.1, and the claims “do [ ] not turn on a medical question.”
  • The label does not decide. In Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80 (2008), “the complaint’s characterization of the claims as professional or ordinary negligence does not control.”

Proof of Staffing and Care Practices

Testimony about a facility’s staffing, supplies, and care routines can be admitted to prove neglect. In Tucker Nursing Center, Inc. v. Mosby, 303 Ga. App. 80 (2010), the Court of Appeals affirmed a judgment on a $1,250,000 verdict and upheld the admission of testimony from certified nursing assistants who had worked at the facility that it was short staffed, lacked supplies, and did not turn residents as often as their condition required, rejecting the facility’s argument that the testimony was not directly relevant.

The Arbitration Agreement

Whether an arbitration agreement binds the resident and the family depends on who signed it and with what authority, and an agreement that binds the resident can also reach a later wrongful death claim. In CL SNF, LLC v. Fountain, 312 Ga. 416 (2021), the Supreme Court of Georgia held that the Guardianship Code “grants a guardian authority to enter into a binding pre-dispute arbitration agreement where the exercise of such power is reasonably necessary to provide adequately for the ward’s support, care, health, and welfare.” In a later decision in the same case, the Court of Appeals found the agreement “not so one-sided as to be unconscionable” and wrote that the Residents’ Bill of Rights “does not preclude Fountain from pursuing any substantive rights … only requires the resolution of those rights in an arbitral, rather than a judicial, forum” (CL SNF, LLC v. Fountain, No. A20A0773 (Ga. Ct. App. June 21, 2022)). In United Health Services of Georgia, Inc. v. Norton, 300 Ga. 736 (2017), the Supreme Court held that an arbitration agreement “does bind the decedent’s beneficiaries with respect to their wrongful death claims.”

Who signed matters. In Life Care Centers of America v. Smith, 298 Ga. App. 739 (2009), a health care power of attorney “did not give Smith the power to sign away her mother’s or her mother’s legal representative’s right to a jury trial.” In Ashburn Health Care Center, Inc. v. Poole, 286 Ga. App. 24 (2007), the facility “conceded below that marriage alone does not establish an agency relationship between spouses.” In Triad Health Management of Georgia, III, LLC v. Johnson, 298 Ga. App. 204 (2009), a general power of attorney conferring “full power and authority to do and perform all and every act” supported enforcement.

Frequently Asked Questions

Is every pressure ulcer a sign that the facility failed?
Not under the federal rule’s own terms. The facility must ensure that a resident does not develop pressure ulcers “unless the individual’s clinical condition demonstrates that they were unavoidable” (42 CFR 483.25(b)(1)(i)).

Must the facility offer fluids and special diets?
Yes. The facility must ensure that a resident “[i]s offered sufficient fluid intake to maintain proper hydration and health” and “[i]s offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet” (42 CFR 483.25(g)(2), (3)).

Which filing deadline applies?
If the claim is an “action for medical malpractice,” which the Code defines to include claims arising out of “[c]are or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment,” the period is two years with a five-year outer limit (OCGA 9-3-70, 9-3-71).

  • 42 CFR 483.25, (b)(1), (g)(1), (2), (3)
  • OCGA 31-8-108(a); OCGA 31-8-126(a), (f); Thurman v. Pruitt Corp., 212 Ga. App. 766 (1994); McLain v. Mariner Health Care, Inc., 279 Ga. App. 410 (2006)
  • OCGA 9-11-9.1(a), (g); Brown v. Tift Health Care, Inc., 279 Ga. App. 164 (2006); Williams v. Alvista Healthcare Center, Inc., 283 Ga. App. 613 (2007); Padgett v. Baxley, 321 Ga. App. 66 (2013); Gaddis v. Chatsworth Health Care Center, Inc., 282 Ga. App. 615 (2006); Holt v. Glenwood Operating Company, LLC, No. A23A1435 (Ga. Ct. App. Feb. 8, 2024); Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80 (2008)
  • Tucker Nursing Center, Inc. v. Mosby, 303 Ga. App. 80 (2010)
  • CL SNF, LLC v. Fountain, 312 Ga. 416 (2021); CL SNF, LLC v. Fountain, No. A20A0773 (Ga. Ct. App. June 21, 2022); United Health Services of Georgia, Inc. v. Norton, 300 Ga. 736 (2017); Life Care Centers of America v. Smith, 298 Ga. App. 739 (2009); Ashburn Health Care Center, Inc. v. Poole, 286 Ga. App. 24 (2007); Triad Health Management of Georgia, III, LLC v. Johnson, 298 Ga. App. 204 (2009)
  • OCGA 9-3-70; OCGA 9-3-71

Disclaimer

This article provides general information about nursing home claims under Georgia law. It is not legal or medical advice and does not create an attorney-client relationship. Whether a claim exists and where it is heard depend on the resident’s records, the admission documents, who signed them, and the specific facts. A person concerned about a resident’s care should consult a licensed Georgia attorney promptly about the particular situation.

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