Steps to Filing a Nursing Home Abuse Claim

Thursday, January 18, 2018

Steps to Filing a Nursing Home Abuse Claim

Written by Malman Law, reviewed by Steve J. Malman.

When you place an aging loved one into a nursing home, you take your time selecting the facility. After all, you want one that is not only covered by insurance, but provides your loved one with the care they need each day – and provides them with a better quality of life.

But what happens when, despite your best efforts in searching for the perfect nursing home, your loved one is injured? You feel betrayed, upset, and unsure where to go next.

Nursing homes are required to provide a higher standard of care to their patients. Sadly, many of these facilities are understaffed, poorly maintained, and some are outright reckless with patient care. As a result, thousands are injured each year in nursing homes – and many nursing home injuries go unreported.

In addition to their legal requirement to provide your loved one with care, nursing homes are required to follow all state and federal regulations.

What Constitutes Abuse in Chicago Nursing Homes?

Nursing home abuse takes many forms. Most nursing home injuries occur from neglect, such as residents not receiving proper hygiene or hydration. Falls are a common cause of injury, and could be prevented by proper monitoring. Another common injury in a nursing home is bedsores.

Other times outright abuse occurs. Physical, sexual, emotional, and financial abuse also happen in the nursing home setting. The damage is often done before loved ones can figure out what is going on – and some loved ones do not realize their loved one was the victim of abuse until a wrongful death occurs.

While the damage of the abuse may be irreversible, family members and victims can still take legal actions against the responsible nursing homes and their staff.

What Is a Negligence Lawsuit Against Nursing Homes?

A lawsuit is a legal claim filed with the court that alleges the nursing home participated in a form of misconduct. This legal process is formal and is typically done with the assistance of an attorney – preferably an attorney that handles nursing home abuse cases regularly.

To have a successful claim, the plaintiff (victim) must include the following in their suit:

• File the claim with the court to start the lawsuit process;
• Name the parties, which include the plaintiff (victim) and defendant (nursing home or employee of the nursing home);
• Provide a statement of facts detailing the abuse;
• A demand for damages, which is the compensation the victim requests for their injuries.

The Three Elements for a Nursing Home Abuse Case

Whether you are filing a case for negligence or abuse, you must have three elements present to have an official case:

1. Duty of Care – This means that the nursing home had a legal contract to provide a level of care (or any care) to the plaintiff.
2. Breach of Duty – The nursing home failed to uphold their duty of care by allowing the victim to be injured, abused, or neglected.
3. Causation – The injuries the victim suffered were the result of the breach of care.

Realize that a nursing home lawsuit is more complicated than these three elements. These elements are mere basics required to start a claim, but by no means all you need to succeed. That is why it is important that you hire an attorney to help you with your case. An attorney understands the elements, knows what evidence to collect, and can help you prove that your case qualifies for compensation.

Steps to Launching a Nursing Home Abuse or Neglect Case

If you launch a nursing home abuse case, you go through four phases. Each of the four phases has their respective timeframe – with some taking longer depending on the circumstances of the case.

Your attorney guides you through each phase, and assists you with collecting evidence so that you can focus on caring for your loved one.

Reporting the Incident to Officials

Before you file your lawsuit, you should report the accident to the authorities. This includes the police and local health department. Most states have an ombudsman, who receives complaints about alleged abuse and neglect and investigates those complaints.

Reporting initiates an official investigation, and the evidence collected by the state or law enforcement agency may help prove your case.

Seeking Medical Treatment

The moment you suspect abuse or neglect, you must seek medical attention. Seeing a doctor starts the chain of evidence required to prove abuse or neglect occurred. For example, if your loved one is found with bedsores, seek medical attention right away. Report to the physician that you suspect neglect, and ensure that the neglect is notated in your loved one’s chart.

Phase One: Initial Investigation

The initial phase involves investigation. Your attorney collects evidence, finds witnesses and gathers their statements, obtains medical records, and begins gathering expert witness opinions.

The investigation phase can last a few weeks to a few months – depending on how difficult it is to collect the evidence. The earlier you meet with an attorney after the suspected abuse or negligence, the easier it will be for them to get the evidence they need. When you wait too long, witnesses become harder to find, may forget details, or other key pieces of evidence go missing.

Phase Two: Discovery

The discovery phase involves multiple mini-phases. First, your attorney presents the evidence from the investigation phase to the judge. The evidence helps secure court orders for further evidence collection.

Then, your attorney and the defense attorney schedule depositions. Depositions are question and answer sessions, sometimes recorded on camera. You can have your attorney present during your deposition, and you will answer questions posed by the opposing counsel.

The purpose of the discovery phase is to streamline the investigations for each side. During discovery, each side must share evidence – including witness lists. When each side openly shares evidence, it reduces the time and costs of a case – and sometimes leads to faster settlements.

Phase Three: Pre-Trial

If the case does not settle during the discovery phase, your case moves into pre-trial. During this stage both sides are more objective when analyzing evidence. Each side also creates a strategy in case they take the case to trial.

Most evidence gathered during the discovery phase requires additional investigations; therefore, your attorney will begin that process during the pre-trial phase and may request court orders to help.

Phase Four: Trial

Now your case goes to trial. This is the stage where you and your witnesses testify in court in front of the judge and jury. If the case goes to the end, a verdict is issued by the jury. Jury verdicts tend to be less mathematical and more emotional.

Therefore, there is no way to determine how much compensation a jury will award to the plaintiff.

Realize Negotiations Are Constantly On-going

Regardless of what phase you are in, your attorney and the defense are negotiating back and forth continuously. Each side is working tirelessly to reach a settlement because both know how unpredictable a jury can be. The more evidence each side finds, the easier the negotiations might become – especially when the evidence powerfully supports the plaintiff’s claim.

If a settlement is reached before the jury has time to deliberate, then the case is closed out.

Understanding Your Rights and Obligations as the Plaintiff

The plaintiff in an injury or abuse case has numerous rights awarded to them, but they also have obligations. Your attorney can go into more detail about each right and obligation you have.

Some rights you have include:

• You have the right to hold the nursing home accountable.  When an injury occurs because of negligence or outright abuse, a victim has the right to file a lawsuit for compensation against the at-fault party.
• You have the right to hire an attorney. As the victim, you have the right to consult and hire an attorney to handle your case – and you are encouraged to do so.
• You have the right to a fair settlement. The term “fair” can be misleading, but you do have the right to collect compensation for your medical costs, pain, suffering, and other damages associated with your case. What is “fair” depends on the circumstances of the case.

In addition to your rights, you also have obligations, including:

• You carry the burden of proof. When you file a lawsuit and you are named the plaintiff, you carry the burden of proving your case. That means you must prove the nursing home was negligent using a preponderance of evidence. The “preponderance of the evidence” standard is far lower than “beyond a reasonable doubt.” The preponderance standard of proof means that if your evidence is greater than the defense’s arguments against it – you have proven your case.

Hiring a Nursing Home Abuse Attorney Is Best

If you suspect nursing home abuse or neglect, contact an attorney at Malman Law. We understand how confusing and scary this situation can be, and we want to help you through the stages of the lawsuit, but also ensure that the nursing home responsible does not harm another person again.

Speak with our attorneys during a free consultation by calling 888-307-7068 or request more information online.