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Responding to Abuse of the Mentally Disabled

When a loved one suffers from a mental handicap, it can be especially painful to learn that he or she has been abused in some way. Whether the abuse is at the hands of a caregiver, a trusted friend, or a stranger, the offender’s actions could have long-term consequences both for the abused person and those who must continue providing care. Representatives of the abused person may wish to seek compensation from the abuser by filing a lawsuit.

What constitutes abuse in Nevada

Nevada law protects “vulnerable persons” from abuse. A vulnerable person is someone who has a physical or mental impairment that substantially limits one or more of the major life activities of the person and has a medical or psychological record of the impairment or is otherwise regarded as having the impairment. NRS 41.1395(4)(e). The law specifically provides that the definition includes people with intellectual disabilities, severe learning disabilities, severe mental or emotional illness, or who has suffered from a terminal or catastrophic illness or injury. It may be helpful to note that the law’s language regarding a condition affecting “major life activities” and allowing for a condition to be diagnosed or merely “perceived” track the definitions of disability used in important statutes like the federal Americans with Disabilities Act, or ADA. “Abuse” falls into two categories. The first is a willful and unjustified infliction of pain, injury, or mental anguish. The second category involves an intentional deprivation of food, shelter, clothing, or services that are necessary to maintain the victim’s physical or mental health. NRS 41.1395(4)(a). The key component of this definition is that the alleged abuser must have acted willfully and without justification. It isn’t enough to show that the abuser was negligent or sloppy in how he or she cared for the mentally disabled person. Instead, the abuser needed to intend to do the harm.

Who can be an abuser?

Note that the definition of abuse doesn’t express any opinion about who can do the abusing. For purposes of showing abuse, it makes no difference if the defendant was a professional providing care in a formal arrangement or just a friend. Anyone around the mentally disabled person could commit abuse according to the first category set out above—an intentional infliction of mental or physical suffering is a clear case. The challenge for plaintiffs in these cases can be proving that the abuse happened and was the defendant’s fault. This is especially true if the victim lacks capacity to testify against the defendant. The second category of abuse is potentially more subtle. How much food, shelter, clothing, and other services are “necessary” for any one person’s wellbeing? Were the defendant’s actions justified under the circumstances? For example, if an especially ill person was threatening to hurt themselves with clothing, it may be appropriate to leave them without clothes for a time. Situations that at first glance seem like abuse may offer defendants a winning argument. These are tricky questions that require careful analysis and skilled lawyering.

GGRM is a Las Vegas personal injury law firm

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area. We are dedicated to providing personal, caring attention to each of our clients. If you or a loved one has suffered abuse and you would like to better understand your legal options, call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Cancer and Disability Rights in Nevada

Cancer and Disability Rights
Cancer affects every part of patients’ lives, including their careers. The rigors of treatment can force someone to take time off and often hurts job performance. In the midst of a battle with cancer, a patient may need to take advantage of rights and protections for people with disabilities, including the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (FMLA).

The ADA prohibits workplace discrimination on the basis of disability

The ADA protects cancer patients who work for an employer with at least 15 employees from being unfairly treated by their employers as a consequence of their illness. Cancer and its treatment will likely qualify a patient as disabled for ADA purposes. The law’s definition of “disability” captures any physical or mental impairment that substantially limits a major life activity. It also covers people with a history of such impairments (for example, cancer survivors) and someone who is perceived to have such impairments (for example, an employee who has lost his or her hair while undergoing chemotherapy treatments). Under the ADA an employer cannot take an adverse employment action solely on the basis of a worker’s disability. Instead an employer must take steps to provide a worker with reasonable accommodations that allow the worker to continue employment. Reasonable accommodations might include a changed work schedule, temporary or permanent reassignment to a less demanding role, or physical changes to the workplace to make the employee more comfortable, such as providing a chair where before the employee was asked to stand. The ADA Amendments Act of 2008 clarifies the ADA’s scope of “disability” to include anything that limits basic bodily functions. It also expressly provides that a condition’s impairments cannot be judged in light of mitigating treatments. For example, a cancer patient who is taking anti-nausea medication may still require accommodations to deal with nausea.

The FMLA offers options for cancer patients and their families

The FMLA protects patients who need to take time off work for treatment by prohibiting employers from firing them. It also protects employees who need to take time off to care for a loved one. An eligible employee may take up to 12 weeks of unpaid leave, cannot lose any employer-provided health insurance coverage while on leave, and must be allowed to return to the same position once leave has ended. Compared to the ADA the applicability of the FMLA is somewhat narrower. It only applies to employers with at least 50 employees, and an employee must have been employed for at least 12 months to be eligible. Note that unpaid leave may qualify as a “reasonable accommodation” under the ADA only after an employee has exhausted his or her FMLA leave. The Equal Employment Opportunity Commission provides a useful explanation of leave under the ADA here.

GGRM is here to help employees in the Las Vegas area

At Greenman Goldberg Raby Martinez we know how difficult it can be to face workplace discrimination while also fighting cancer. Our experienced attorneys shoulder the burden of working out disputes with your employer so you can focus on healing. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.