One would like to think that vulnerable people, whether they’re elderly or in some form of physical or mental incapacity, would be secure in a licensed nursing home and their safety would be ensured.
Unfortunately, that doesn’t happen in many nursing homes. Statistics indicate that up to one-third of government-regulated nursing homes across the nation have been cited for some form of neglect or abuse. This may be an occasional and isolated incident at a normally top-notch care facility or it could be a deep, underlying and dangerous situation at a nursing home where systematic abuse frequently takes place.
Criminal vs. Civil Cases
Regardless of how horrendous the case facts may be, the legal process of seeking justice for wrongful acts has two avenues. There are the criminal courts that deal with the more serious and usually violent forms of abuse. Then there are civil courts that victims of nursing home abuse more frequently turn to.
Criminal acts are prosecuted by the authorities in a strict penal code process that has little, if no, control by the victim and family members. Civil processes are different. Here the family hires a lawyer and takes the nursing home to court.
Understanding the civil court process is quite straightforward but must be undertaken by a legal attorney, preferably a lawyer who has experience in nursing home abuse cases. In many areas, there are lawyers who specialize in this field.
Contacting and retaining a lawyer is the first step that a victim of nursing home abuse or a supporting family member must do in commencing a civil lawsuit.
Working With a Lawyer
A lawyer who takes on a nursing home abuse case is going to be bound by the law to establish the facts and prove them in court. This is going to be a time-consuming process and the lawyer will quickly assess if there is sufficient evidence available to bear the “burden of proof” that unlawful abuse took place by way of neglect or an intentional act.
It’s important to understand the lawyer’s role. It’s to fairly represent the best interests of their client (plaintiff) and still respect the legal rights of the nursing home (defendant). Staying within the law, the lawyer must prove three facts:
- The nursing home entered into a legal contract to provide a “duty of care” to the victim.
- The nursing home failed to provide that duty of care through neglect or an intentional act that caused harm to the plaintiff.
- The case facts and evidence proves “on a balance of probabilities” that the alleged abuse is relevant to the proceedings.
Most people immediately wonder what a lawyer’s services will cost them to file and litigate a nursing home abuse lawsuit. Virtually all ethical lawyers will work on a “free” basis where there are no upfront costs paid by the plaintiff and the lawyer will eventually be paid a set proportion of the final settlement fee.
What the Case Process Looks Like
A nursing home abuse lawsuit will follow the same process that any civil lawsuit is required to set forth. Prior to starting a process, a lawyer will have a clear, open and honest discussion with the plaintiff. The lawyer will be clear that all evidence must be disclosed and that it must be relevant and truthful.
Once a lawsuit commences, the process will have four distinct steps in building a provable case.
1. Pre-Lawsuit Investigation
Initially, the lawyer will have a general discussion with the family and the victim, if possible. Here, the basic facts are obtained as well as whatever documentation is available. This will include the legal contract with the nursing home, recording witness observations, medical records, and photographs. Additionally, statements of allegation and defense will be prepared.
After a lawsuit is filed, witnesses will be subpoenaed (legally required or summoned) to court and testify at what’s called an “examination for discovery”. This is a deeper fact-finding process where witnesses for the plaintiff and defendant can be cross-examined and their testimony bound over for use at a later trial. Often, facts are disclosed at discovery which were overlooked in the initial investigation.
3. Trial Preparation
Once the preponderance of evidence is obtained through the investigation and deposed testimony, both parties take time for an objective analysis of what facts have been exposed. Their relevance will be assessed and a strategy for proving or disproving the case at trial will be developed. Trial preparation also allows time for further investigation including sourcing expert witnesses to verify or refute the evidence.
4. Trial and Appeal
Going to an actual trial where a jury is empaneled and evidence is called before them is a last resort for most civil process lawyers. Usually, offers of a settlement will have been made and an attempt to compromise a resolution will be tried. Failing that, the case will go to court and a judge or jury will be asked to decide whether the allegations are proven and to what degree the defendant should be held responsible. Compensation may also be decided by the court and either party may be allowed to appeal the decision.
How Long the Case Process Takes
A nursing home abuse lawsuit is no different in process than other suits. They rarely go the full distance to a trial and are usually settled somewhere throughout the four-step process.
Where the case is minimal and parties are fully cooperative, the case may be over in several months when a settlement is arranged. Occasionally, they drag out to the courtroom door which can be a year or two in the making. Seldom do cases last longer than a few years except for large amounts that are appealed to the higher courts.
Involvement of the Victim and Family
The victim and family members are vitally important to the lawsuit process, although in no way are they expected to organize it. Nursing home abuse lawsuits are complex legal procedures that are conducted by skilled counsel.
Family members as well as the victim, if capable, are expected to cooperate with the process and be available throughout. Being honest and straightforward is mandatory. Finding facts and truthfully resolving them is the aim of this legal process.