The Right for a Civil Lawsuit
If you have a loved one who has been abused or neglected in a nursing home or assisted living facility, you may have the right to file a civil lawsuit to hold accountable the responsible parties. Winning this type of elder abuse case and being awarded civil suit damages could allow you to remove your loved one from one facility into another, pay for additional nursing care, and ensure ongoing treatment for their abuse.
Proving Elder Abuse or Neglect
If you are like most people who have discovered a loved one has been abused or neglected, you started by reporting such abuse to an agency who will have conducted an investigation. Once the investigation is complete, the agency will generally file a report to show whether it found neglect or abuse. This is the first weapon you need in a lawsuit. Actual written proof that neglect or abuse took place is hard to overcome.
Establishing a Duty of Care
Another aspect of a civil lawsuit is establishing that the facility owed a duty of care and failed to meet its obligations. Clearly if a loved one suffered some form of physical or emotional abuse at the hands of a caretaker, the facility has not met the standard of care that is expected.
Review of Medical Records
Another aspect of proving an elder abuse case is a thorough review and analysis of medical records from the facility as well as from other physicians involved in your loved one’s care. The records should document the resident’s condition, what problems they are at risk for, a care plan to address those problems, and what care they received. In most cases, nursing records should also show some indication of bruise, cuts, or other physical injuries. Regardless, the records must be reviewed carefully by an attorney who is skilled in deciphering the terminology. Often times the nursing home will try to blame the abuse on a resident’s preexisting medical condition or age, known as “the old and sick defense.”
Primary Elements of a Nursing Home Abuse Lawsuit
The court will consider three specific factors when pursuing an abuse or neglect suit:
- Duty of care: Does the law require the nursing home or skilled facility to meet specific standards of care?
- Breach of duty: Can you prove whether the nursing home (staff) failed to do something or did something that caused harm?
- Suffered harm: Did the victim suffer some form of physical, mental, or financial harm as the result of the abuse or neglect?
If you suspect abuse or neglect, it is important that you keep careful track and note of anything you observe. Keep in mind that photographs, written notes, and even diaries can be helpful when pursuing a nursing home abuse claim. Not only can you use these records when reporting abuse to a state agency, but they may also be helpful in court.
If you are uncertain whether you have sufficient information to pursue a civil suit for nursing home abuse, it is highly recommended you speak with an attorney who can review any documentation you have. This includes state agency reports and notes you have recorded yourself. In nearly all cases, an attorney can help you determine whether you should pursue legal action to hold the responsible parties accountable for their actions.
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