Defense Considerations: In negligence actions, nursing homes are entitled to assert the sorts of defenses that are available inmost negligence cases, such as the contributory negligence of the injured party, and assumption of a known risk. However, in some cases, such as where a person has placed him or herself into a nursing home specifically because he or she needed to be protected from the effects of certain medical conditions, the defense of contributory negligence may not be allowed.

Breach Of Contract

Usually, a nursing home will enter into a contract with a resident, in which it sets out what services it will provide, and the cost of those services. If the perceived abuse or neglect of the nursing home or its employees is contrary to promises made in the contract regarding the care of residents, the nursing home can be sued under a breach of contract theory. Many contracts require only that the home provide such services as are "reasonably necessary" for the resident's well-being, but even under this standard, a nursing home could be found negligent if it failed to meet the basic needs of a resident.

Criminal Culpability

Some states provide criminal penalties for the abuse, neglect, or other mistreatment of nursing home residents. Historically, prosecutions for crimes involving abuse, neglect and exploitation of the elderly were relatively infrequent. Recently, however, there have been more and more prosecutions of such actions. Moreover, some states have enhanced penalties for crimes committed against older people. In some cases, failures to provide residents with sufficient food, keep residents clean enough, or prevent bedsores from occurring, have supported convictions for criminal neglect. In other cases, the unjustified use of physical restraint or force against nursing home residents has resulted in convictions for nursing home abuse. In some states, the definition of abuse may require inappropriate physical contact that harms or threatens to harm the patient, and may not cover verbal threats.