There are far too many situations where nursing home residents are mistreated whether that’s through neglect or physical, mental, sexual and/or financial abuse.
Statistics from federal and state authorities record that almost one-third of nursing homes throughout the United States have been issued citations for abuse infractions and violations. Ten percent of these were cases where elderly citizens who were not capable of defending or looking after themselves suffered significant harm or were exposed to unacceptable risks.
Over and over, the reasons for abuse in nursing homes have been identified where facilities are understaffed, workers are undertrained or negligently hired and where the corporate structure placed the drive for profits overtop of providing the required standards of care that the residents deserve and are paying for.
Often the abuse occurs when a lack of supervision or provision of basic care is negligent. This can be due to a systematic failure of the nursing homes corporate culture, the omission of carrying out care responsibilities by staff or occasionally violent acts committed by other residents that could have been prevented should a safe and secure structure have been in place.
Unfortunately, a lack of awareness and limited knowledge of the law and personal rights create situations where abused seniors and their families don’t always get or seek the justice they deserve. Yet, seniors are within their rights to pursue legal action when they’ve been abused, neglected or taken advantage of in their nursing home facility by nursing home staff or even other residents.
When a nursing home resident is harmed by a negligent or an intentional act, it’s not always clear what the root causes are and who is to be held responsible. Nursing home abuse cases are complex legal matters that can involve intensive investigation and extensive experience in navigating the legal system.
Rectifying the abuse and reaching a proper settlement of compensation for injuries, damages, and punitive awards should always be handled by an experienced and competent attorney who specializes in cases of nursing home abuse.
Here is what to know about how a lawyer handles the complaint and litigation process involving a nursing home.
What Nursing Home Abuse Lawyers Do
The first thing a lawyer who specializes in nursing home abuse will do is to meet with the complainant or the family representative who has legal authority to manage the abuse victim’s affairs. A general discussion will take place about the history of the victim, their mental and physical capacities, and the circumstances surrounding the allegation of abuse.
The lawyer will apply the circumstances to the tests of law and determine if there’s a case which can be litigated. There are three primary legal requirements to be addressed:
- That a legal contract existed which binds the nursing home to a duty to care for the alleged victim or plaintiff.
- That the nursing home facility failed to uphold their responsibility of care either through negligence, omission or intentional acts.
- That the abuse is a “direct or proximate” result of the acts and that the legal action is related to this cause.
If there is “just cause” for the victim or victim’s representative (plaintiff) to commence a legal action against the nursing home company, its employees or any third party such as an offending resident (defendants), the lawyer will begin an investigation into the facts and will obtain evidence to prove the abuse in fact occurred. Proving the case is paramount to successfully winning a lawsuit and obtaining just compensation.
How Nursing Home Abuse Lawyers Help
A competent lawyer who specializes in nursing home abuse cases should initially attempt to reconcile the complaint between the parties. This might involve addressing a letter to the responsible person in charge of the nursing home that outlines the concerns and requests a reply with a course of corrective measure.
Should that step fail and the lawyer is confident that there is a founded case that can be brought before the courts, the lawyer will then take steps to undertake a lawsuit. These steps include:
- Gathering information. It’s important to be as informed as possible regarding the history and facts of the abuse allegation. This might be medical records, witness statements, and other documentary or photographic evidence.
- Starting legal action. This is done by filing a claim in the court of proper jurisdiction and by having the defendants served with notice of the action.
- Preparing for discovery. This involves collecting and organizing the information prior to trial and may involve having the plaintiff and defendants deposed or sourcing expert witness testimony.
- Negotiating a settlement. Civil cases rarely go to trial as in over 90 percent of the time a settlement is agreed upon by all parties before the case is heard at trial.
- Commencing a trial. When a settlement cannot be reached and the lawyer is convinced that sufficient evidence exists to rule the balance of probabilities in the plaintiff’s favor, then a trial is conducted and a judge and/or jury will make a decision regarding the facts and decide the outcome, including an amount for settlement.
- Resolving the lawsuit. Regardless of the outcome, the lawyer is seized with the case and must conclude the proceedings in accordance with the law.
Knowledge of Nursing Home Abuse Law
A lawyer who handles nursing home abuse cases is also going to be familiar with the federal and state laws that govern nursing home facilities. These laws include:
- The Nursing Home Reform Act (NHRA)
- The Older Americans Act (OAA)
- Laws Involving Medicare and Medicaid
- The Social Security Act
- The Long-Term Care Ombudsman Program
- The Statute of Limitations
- State Adult Protective Services (APS)
There are certain obligations a nursing care abuse lawyer expects from a plaintiff and the victim. Above all, lawyers expect that the information their client shares is truthful and complete.
How To Work With a Nursing Home Abuse Lawyer
Commencing a legal action is a time consuming legal process aimed at getting to the facts of what took place and how they stand against the defendants’ actions and responsibilities.
Nursing home abuse cases are forms of civil personal injury litigations aimed at finding the “cause of harm” and seeking proper remedies to compensate medical expenses, injury, and disability burden as well as legal costs. They are also aimed at a larger picture of deterring other nursing care homes from committing abuse.
Here are the basics of what is necessary when working with a nursing home abuse lawyer:
- Absolute transparency and openness about the facts whether they help or hinder the case.
- Immediacy in reporting the abuse to the nursing home, to the authorities and to the law firm.
- All available evidence including a history and timeline of the abuse.
- Specifics of the information, not generalizations.
- A commitment to seeing the case through to a successful completion.
- Patience. Legal proceedings can be slow and time-consuming processes — especially cases of nursing home abuse.
Lawsuits involving nursing homes are complex legal matters. Many nursing homes are run by large corporations that have the financial and legal wherewithal to overwhelm an inexperienced plaintiff. Retaining a good lawyer to handle a nursing home abuse case is mandatory.
In a perfect world, nursing homes would be secure and safe facilities where senior citizens, elders and persons with ailments or disabilities would be treated with respect. They’d be allowed the proper care they deserve. Unfortunately, many seniors and their families will need to equip themselves with a competent lawyer who can work with them to seek justice when these nursing home standards of care are not met.