It’s hard to put yourself or your family in a nursing home, but you do it to ensure safety. Nobody should experience nursing home abuse – but if you or a loved one has experienced any, justice is possible.
While it can be overwhelming to sift through the legal options and understand your rights, you aren’t alone. Read on to learn more about filing a personal injury claim for nursing home abuse.
Liability for nursing home injuries
There are many ways to hold the nursing home accountable for the injuries they have caused or facilitated. Negligence, abuse, false imprisonment, violations of criminal statutes, or violations regarding licensing, maintenance, and general operations are all relevant offenses.
Acts of abuse, neglect, or exploitation can warrant investigations by adult protective services agencies, lawsuits, and even criminal prosecutions. An investigation prevents further harm; a lawsuit remedies damages, and a prosecution punishes the offender.
Personal injury claims vs. personal injury lawsuits and Nursing Home Abuse
An injury claim is essentially an insurance claim. You file the claim for compensation with your insurance company or that of the negligent party (the nursing home).
What’s more, you must file the claim as quickly as possible after the accident. Some insurance companies even require you to file within one to two days of the accident, so it’s best to get on it sooner than later.
Once the claim is filed, the insurance company will investigate the alleged accident. They will attempt to find out what happened, who’s to blame, and judge the damage the victim has suffered.
The insurance adjuster reviews both medical records and police reports and may attempt to get a statement from you. That last part is why you should get a personal injury attorney before you say anything to the insurance company.
Your attorney should talk to the insurance company on your behalf to protect your best interests. The insurance adjuster is not concerned with your best interest – it’s their job to reduce the amount you receive.
You should pick an experienced attorney, as they will best negotiate with the insurance company to settle your claim. And if no settlement is reached, your attorney will file a personal injury lawsuit against the person responsible for damages.
Through the legal system, the personal injury lawsuit allows you to pursue compensation and may award punitive damages (extra money). Most lawsuits result in settlements, legal agreements between the victim’s and the staff’s lawyers, but some lawsuits go to trial. The Lopez Law Group is experienced in getting justice for our clients, no matter which route.
Civil vs. criminal lawsuits against nursing homes
In civil lawsuits, it’s up to the victim to file and prove the facility breached an appropriate standard of care. Liability can be established by proving negligence in supervision, hiring or staffing, facility upkeep, or equipment selection or upkeep.
A plaintiff may need to offer expert medical testimony unless the nature of the injury is obvious to the average person. A dilapidated nursing home likely won’t require testimony, but a nurse’s treatment of a patient’s condition might.
Conversely, criminal cases have higher burdens of proof and deliver more severe punishments, like sentencing, felonies, and misdemeanors. Lawyers are required, and one will be provided if the defendant cannot afford one – juries are often involved as well.
Criminal lawsuits are initiated by members of the United States government – they are not filed by the victim. Note civil lawsuits don’t require lawyers – they’re just highly recommended – since the defendants don’t risk jail time, only fines.
Standard care, causation, and defense considerations
Many states have standards for nursing homes; however, a facility may be liable even if they meet state standards. That’s why an attorney is needed: to research your area’s standards, licensing requirements, and various regulations.
A common issue in nursing home litigation is whether a resident’s injury was inevitable due to their condition. Defendants (the accused) thereby often argue the victim’s condition, and not the nursing home, is responsible.
But this shouldn’t deter a resident who believes they are justified in saying a nursing home caused the injury. A nursing home houses its residents, conditions and all; so it’s possible to argue they made the condition worse.
Tort vs. Breach of Contract Lawsuits For Nursing Home Abuse
A tort lawsuit is filed when a resident suffers harm or loss and indicates the healthcare fell beneath reasonable standards. Nursing homes usually have insurance for negligence and medical misconduct, so victims can usually collect more money through these lawsuits.
Breach of contract lawsuits are more limited in scope than tort lawsuits, focusing more on the contract, not the victim. Breach of contract cases deal with any conduct violating the agreement between the resident, staff, and facility.
Most contracts only require that nursing homes provide their residents with reasonably necessary services. But still, a home can fail to meet the basic needs of its resident and yet technically meet their contract.
Compared to tort lawsuits, breach of contract lawsuits generally award less money. The damages are limited according to whether the risk was reasonably foreseen by both parties when the agreement was signed.
How much do claims and lawsuits award, and how long do they take?
Nursing home abuse actions can award millions of dollars. That said, with solid evidence, like video, you have a better chance of winning. However, there’s no guarantee – especially in front of a jury, where you can win big, little, or nothing.
Most can expect to see compensation in one to two years – still, the amount of time can vary with each action and case. A lawsuit that goes to trial will likely take longer than one that settles.
Before you file your injury claim…
Remember that you are not alone, no matter how difficult your experience has been, or the process will be. Most importantly, don’t lose faith – with the right attorney, justice will be served.
By taking the time to learn the ins and outs of the process ahead of you, you’re off to a better start. Give us a call so we can help you file the personal injury claim, and focus on the light at the end of the tunnel. The Lopez Law Group won’t rest until you or your loved one receive the justice deserved.