The physical, sexual, and emotional abuse of elderly patients in nursing homes is a serious problem in the United States. Congress commissioned a two year study which examined the rate of these types of abuses in nursing homes nationwide. The Representative who commissioned the study stated that the results found were “shocking”: one in every three nursing home patients had been a victim of abuse.
State and federal regulations are in place to ensure that patients receive proper care in nursing homes. State licensing agencies are responsible for making inspections of premises. However, the rates of abuse nationwide make it very clear that these regulations are not adequate to protect the rights of vulnerable elderly patients.
Lawsuits are an essential element of ensuring that we keep nursing homes safe for our loved ones.
Nursing Home Abuse Litigation
If a patient has been abused in a nursing home, they (or a family member representing their interests) are entitled to file a lawsuit. Depending on the type of abuse, this may be an action for medical malpractice (for example, if the patient was the victim of a medication error) or negligence (for example, if the patient suffered complications due to bedsores).
These are civil claims, which are filed in the civil court system, typically in the state in which the facility is located.
Each state has specific rules for how a civil claim shall proceed, but generally the process includes:
Filing a Complaint: The party who files a lawsuit is known as the plaintiff. In nursing home abuse cases, this would be the injured party or their family members/another filing on their behalf. The nursing home, doctors, and/or employees are the defendants.
Discovery: The case will next proceed to discovery. During this phase, each party to the claim will gather evidence relevant to their legal argument. This can include documents such as medical records, testimony in the form of depositions, and any other material which may be relevant.
Settlement Negotiations: In some jurisdictions and/or for some particular types of cases, the parties are required to engage in negotiations prior to trial. This can take the form of alternative dispute resolution such as mediation, arbitration, and pre-trial conferences. These are attended by the parties as well as a neutral third party who will act as a facilitator, with the goal being to guide the parties in coming to a mutual agreement without having to progress to a trial.
Trial: If the parties are unable to come to a mutual agreement during the settlement process, they will proceed to trial. During a civil trial, each side will present their evidence in front of a finder of fact, who may be a judge or a jury.
Nursing Home Settlements for Abuse
Despite what is commonly presented in courtroom dramas, the vast majority of personal injury cases do not proceed to the trial stage. Most commonly, the parties are able to reach a settlement agreement. There are advantages to both sides in settling the claim before trial.
The advantageous of nursing home settlements include:
- Avoiding the expense of a trial, which can include expert witnesses and attorney fees
- Avoiding the trauma which can accompany a trial. For example, in a nursing home abuse case, a patient may have suffered traumatic sexual or physical abuse. If the case progresses to a trial, the victim may have to take the stand and testify about the abuse. This can cause the victim to have to re-live the pain and suffering previously experienced and can be secondary trauma.
- Maintaining confidentiality; often times settlements will be sealed agreements (meaning they remain confidential), whereas civil trials are matters of public record (and accessible to the public). This can be beneficial for the defendant (the details of the abuse do not become public) as well as the plaintiff, who can avoid potentially embarrassing or traumatic information becoming a matter of public record.
- Unique agreements: the parties are not bound by a judge or jury assigning a numerical value to the case. For example, a family may request that a nursing home revise medication dispensing training policies in order to prevent future medication errors.
Nursing home settlements will include damages. Damages refers to monetary compensation awarded to the victim in a personal injury case. This compensation is an attempt by the legal system to restore a victim to the place in which he/she has been in had the injury not occurred. Damages can come in a variety of forms.
Nursing home settlements for abuse include:
Economic Damages: are tangible losses. These can include things such as medical expenses, lost wages, and projected future rehabilitation expenses. For example, if a victim of nursing home negligence suffered a fall due to unsafe room conditions which resulted in a broken leg, she might be entitled to coverage of her medical bills related to the break, as well as the future physical and occupational therapy required to heal from her injury.
Non-Economic Damages: are intangible losses. These can include the mental health effects that result from abuse such as pain and suffering, mental anguish, emotional distress, and other harms that affect the victims’s quality of life but do not have an obvious cost. For example, if a victim of psychological abuse in a nursing home suffered no physical effects, she still may be compensated for the damage to her mental health and emotional wellbeing.
Punitive Damages: are different from economic and non-economic damages. The purpose of punitive damages is not to compensate a plaintiff. The purpose of these damages is to punish the defendant and as a deterrent to others committing similar acts in the future. For example, if a court found that a nursing home had failed to terminate an employee it was aware had a record of abusing patients and this employee committed more abuse, the court may assess punitive damages.
Nursing Home Abuse Advocacy
No family ever wants to be in the position of filing a nursing home abuse claim. If someone you love has been injured due to the neglect or abuse of a nursing home or other long-term care facility, they may be entitled to compensation.
There is a statute of limitations for all types of injury claims, limiting the timeframe in which a claim may be filed. Don’t allow the statute of limitations to be the deciding factor in your case.
We can help navigate the legal system and advocate for your family to obtain the justice that you and your family deserve. Call us to learn more about abuse litigation and nursing home settlements or to schedule a free case evaluation.