Can I sue over decline of my 92-year-old mother after she was injured at care home?

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August last year, my 92-year-old mother, a resident in a care home, was injured on two occasions on her shin, in exactly the same place, during the use of a hoist. The injuries led to an infection, a traumatic hospital stay, cellulitis and a horrible scar. My mother declined dramatically after her return from hospital and several carers expressed their shock at how badly she had been affected.

The incident was investigated after I submitted a safeguarding report. The first injury had gone unreported, despite my mother complaining about the pain. The second was reported after a nurse saw the swelling and large haematoma.

I subsequently received a letter from the manager saying it had been investigated and changes to the hoist and sling were being made. The manager kept me informed about the investigation, but in the end there was little actual information disclosed as to how the injury was caused.

Despite this injury causing my mother pain and distress, I have not taken any action so far because I did not want to cause any unpleasantness for my mother who is now virtually incapable of doing anything for herself and is immobile and thus reliant on the carers and nurses. I was also influenced by the fact that her care improved dramatically after the injury.

However, I am very upset that an injury sustained in the care home has caused such harm to her physically and mentally.

The care home has now been sold to an investment company. I believe that it was sold last year, but we were only informed a few weeks ago. If I have a case and decided to sue, who would I sue?

– Laura AI

am very sorry to hear all that your mother – and by extension her loved ones including you – have gone through.

You say “if I have a case” but the first matter to be clear about is that if there is a legal claim here with merit, it is your mother’s and not yours. Any legal action would therefore have to be brought by your mother, or on her behalf. If for instance, she is unable to deal with dayto-day liaison with a solicitor acting on her behalf, she could give you power of attorney to deal with the case for her.

Please note the usual time scale to bring a personal injury case of this kind is three years from the date of the incident.

From what you say, there is a situation that warrants investigation, and which may well lead to a legal claim.

You should obtain the medical records that prove your mother’s injury occurred. But the key point is whether negligence on the part of the care home led to the injury. The burden of proof is on the injured party. Negligence is basically where one party has a legal duty of care to another party and what happened fell below that duty.

To prove this case is negligence, you will need a whole suite of evidence. Some evidence, like the medical records, you may be able to obtain yourself. Other evidence you can ask the care home to disclose.

In any case like this, photographs can be compelling to show the extent of injury (they are also emotive especially where, like here, the injured party is vulnerable).

You should also ask for disclosure from the care home as to their report of the incidents involving your mother, as well as other accident records. A red flag would be other residents being injured like your mother.

You should also ask for details of who was working the hoist and what training, experience and supervision they have. Care homes have record-keeping obligations so should have the relevant information – and should provide the details. It may also have CCTV footage.

You should also obtain a statement from your mother as to her recollection of events, sooner rather than later.

You also ask who to sue now the care home has changed ownership. This is a good question and may only be answerable once the case progresses.

The starting point is the owner of the home at the time of the injury. Details of who that was should be on your mother’s care home contract. But the sale and purchase agreement entered into when the home’s ownership was transferred may have a provision in it to say which party (departing owner or new owner) is responsible for historic claims. The new owner taking on liability for historic claims may have been part of the sale deal. You could also ask the current owner who is responsible.

Doing that will, of course, bring all of this into the open. And this raises two further points for you to think through.

First, I read from what you say that you want your mother to carry on living there. Bringing a claim could put that at risk, especially as care home residents do not have much security of tenure. Their right to carry on living in a particular home is not protected in law like other vulnerable parties, and some care home owners have been known to ask residents to leave if personal injury claims are brought, or even threatened. I find this morally reprehensible, but we need to be realistic that in the real world these things can and do happen.

Second, I ask you to ponder, what would be the point of bringing a claim? Will it help your mother? If she receives compensation, will it improve her life or just pass to her beneficiaries on death – some of it may even pass to the Government in the form of inheritance tax, heaven forbid.

Or will bringing a claim help her and also potentially help others by driving an improvement in the standard of care at the home?

I cannot answer these questions, but I do urge you to think about them before you embark on a journey that may be stressful and time-consuming.

In pain and distress: A woman has revealed how her mother is suffering after an accident at a care home, and is wondering whether to sue for liability 1 Gary Rycroft is a solicitor at Joseph A Jones & Co. His column is published twice a month online. Email questions to askalawyer@ telegraph.co.uk