Placing an elderly or ailing family member in a nursing home can be a difficult task at best. It’s a tough decision to place a loved one in the care of others and it’s usually because the extended family is unable to provide the level of care needed. This care comes with a cost that is absorbed by the family or often paid for by extended insurance.
Nursing homes are expensive facilities to operate. They have high overheads to maintain and charge significant fees for their services. In return, nursing homes should be expected to provide care that’s high quality and in a secure and safe surrounding.
Adequate medical support should be available to service the patient’s needs so they can comfortably live and enjoy their remaining time. The nursing care home should also be kept clean and maintained by a staff that shows compassion for the residents. Protection of the residents’ health and safety is a nursing home’s paramount moral and civil responsibility.
As well, nursing homes have a legal duty of care under various state and federal statutes. Licensed homes are required to abide by these laws:
- Nursing Home Reform Act (NHRA)
- Medicaid and Medicare
- Social Security Act
- Older Americans Act
- Long-Term Care Ombudsman Program
- State Adult Protective Services
- State Penal Code
- Statute of Limitations
Sadly, these responsibilities are sometimes not met. Many nursing homes are understaffed and their workers are poorly trained and poorly paid. They can also be poorly screened during the hiring process and are inadequately supervised. This lack of care filters down to the residents who suffer many forms of abuse.
Nursing home abuse happens in different forms. Primarily, neglect occurs which results in the residents not having proper nutrition or hygiene. Falls take place that could have been prevented and this leads to medical complications including death. Bedsores are another common problem that results for poor attendance.
Abuse in nursing homes happens in other forms. Physical, emotional, sexual and financial abuse is not as common as general neglect but theses abuse cases do occur. Often, the damage to the resident is done and over before the family finds out. The abuse effects may not be reversible but there is legal action that can be taken against a nursing home.
What Are Lawsuits Against Nursing Homes?
Lawsuits are legal claims filed in civil courts that allege specific misconduct on the nursing home’s part. This is a formal process that must be done by an attorney, preferably a lawyer who specializes in nursing home abuse cases.
The elements of a nursing home lawsuit are:
- The claim which is filed in court to commence the process
- The parties which are the plaintiff (victim) and the defendant (nursing home)
- The statement of facts which details the specifics of the alleged abuse
- The statement of defense which details the nursing home’s explanation
- The compensation for damages which the plaintiff is requesting
A lawsuit against a nursing home must prove three elements:
- That the nursing home was in a legal contract to provide care
- That the nursing home failed to uphold that duty of care
- That the facts stated in the lawsuit resulted from a lack of care
Launching a nursing home abuse lawsuit is a complex matter. Being represented by a lawyer experienced in these cases is mandatory.
How To Launch a Lawsuit Against a Nursing Home
There are four phases in launching and proceeding with a nursing home abuse case. An experienced and competent lawyer will be entirely familiar with the process and it’s their job to guide the plaintiff throughout.
Phase 1: Investigation
The first phase is the investigation where all relevant facts are obtained and correlated. These may include witness observations and statements, photographic evidence, medical records and expert witness opinions.
Phase 2: Discovery
The second phase is called “Discovery” where evidence is placed before a judge to assist in gaining more facts. Here witnesses are “deposed” and cross-examined under oath. Discovery’s purpose is to streamline the legal process before putting the matter to a time-consuming and expensive trial.
Phase 3: Pre-Trial
The third phase is the pre-trial preparation where the evidence is looked at objectively and the lawyers devise their strategy for putting the case to trial. Often, information gained in the discovery phase needs follow-up investigation.
Phase 4: Trial
The fourth and final phase is the actual trial where witnesses testify before a judge and jury. A verdict is obtained which decides the degree and severity of the neglect. The case may be dismissed or upheld depending on the jury’s belief and awards of compensation and costs are determined.
At any time before the jury’s verdict, the plaintiff and the defendant may choose to settle the case as they see fit.
What to Expect in a Lawsuit Against a Nursing Home
Family members who decide to file a lawsuit against a nursing home should expect resistance from the nursing home and be prepared to take the case all the way to trial if necessary.
They should also expect professional advice from their lawyer including a realistic estimation of the chances for the suits success. They should be prepared to listen to their lawyer and act on that advice.
The vast majority of nursing home abuse cases are settled out of court and do not make it to trial.
How Long a Lawsuit Against a Nursing Home Takes
The civil court system in all states is a slow and methodical process. Statutory laws have evolved over years and there are many legal precedents involving nursing home abuse cases that an experienced lawyer will know.
The outcome of all lawsuits is to establish the facts and seek a fair and balanced resolution. This may come in several months if all parties agree to cooperate or may drag out for years if the matter goes to a trial and results in appeals.