Is It Difficult to Sue a Nursing Home?
March 4, 2022 | By Colombo Law
There’s an expectation that the nursing home staff and management will care for your aging loved one for the duration of their stay at the long-term care facility. Unfortunately, elderly adults are abused and neglected at an alarming rate.
If you think your loved one is being harmed by the very people in charge of providing their care, you can sue the nursing home. Taking legal action against a nursing home is challenging. But, with the right legal team, you have a greater likelihood of securing a favorable outcome.
A nursing home can and should be held responsible for any act of abuse or neglect that causes harm to a resident. The Morgantown nursing home abuse lawyers at Colombo Law understand the devastating nature of elder abuse and neglect. We have the experience and tenacity needed to seek justice for your loved one and recover compensation for your damages.
What Are the Challenges of a Nursing Home Abuse Claim?
The nursing home will likely try to deny wrongdoing and make it difficult for you to compile witness testimony and evidence of the neglect or abuse. In addition, residents may be too afraid to come forward for fear of retaliation by staff and caregivers.
Choosing an experienced legal team is essential for mitigating these and other issues. A knowledgeable nursing home abuse attorney will know the tactics used by facilities and their insurers and gather the necessary evidence to overcome them.
Filing a lawsuit against a nursing home could prevent someone else from falling victim to abuse and neglect. Some long-term care facilities change their policies and protocols to provide better care after being sued to avoid future lawsuits. So, although it may be difficult, it is important to explore your legal rights if you or a loved one suffered harm in a nursing home.
Gathering Evidence of Abuse or Neglect
The first step in building your nursing home abuse or neglect claim is documenting every detail. Do the following during your visits:
1. Listen Carefully
Seniors often won’t say outright that they are being mistreated. It is up to you and your family to keep your ears open for potential signs of abuse and neglect.
2. Take Pictures of Injuries or Videos as Needed
Take photos of any signs of neglect, such as soiled clothing or bedsores. You should also photograph the condition of your loved one’s room and any common areas.
3. Make Notes
Write down everything that your loved one and the staff say about their care, and keep a diary of everything you’ve seen since you first suspected abuse or neglect. Stories from other family members who visit, as well as specific dates and times, will greatly improve the validity of your claim.
Audio recordings can be valuable as well. West Virginia is a one-party consent state for recorded conversations (W.V. Code § 62-1D-3), which means you may record talks with staff and management legally.
Talk with other residents to see if they have experienced similar abuse or neglect. Some families have uncovered systemic negligence in nursing homes through these conversations.
4. Take Injuries Seriously
If your loved one has unexplained injuries or repeated accidents, obtain the accident reports. The nursing home is legally required to document residents’ injuries, and these contain details that your lawyer can use to determine if your relative is a victim of abuse or neglect.
Sometimes, a long-term care facility fails to file these accident reports altogether or attempts to lie about the incident. The absence of these reports is cause for concern.
A second medical opinion can help make sure your loved one is properly treated for injuries and establish secondary medical records that are invaluable in a nursing home lawsuit. Physical abuse leads to medical and financial documentation that must be compiled for your claim. Neglect is more difficult to prove through these methods, so extensive documentation is critical.
5. Collect Witness Testimony
The last piece you need to gather for your lawsuit is identifying witnesses of the abuse or neglect and gathering their contact information. Your attorney can talk with these witnesses further in building your case.
Determining Liability for Nursing Home Abuse
A lawsuit against a nursing home for negligence must prove that the facility failed to uphold its duty of care to a resident. Your nursing home abuse lawyer must also prove that the abuse or lack of care directly caused your loved one’s injuries or wrongful death.
Nursing homes can be held liable for:
- Failing to maintain reasonably safe premises that are free of dangerous hazards
- Negligent hiring practices that lead to a nursing home employee intentionally harming or neglecting residents
- Failure to properly train and supervise nursing home staff
- Negligent supervision if the resident is injured or falls when facility staff should have been nearby
- Failure to maintain clean premises for sanitary conditions in resident rooms and commons
- Failure to provide proper medical treatment
- Resident neglect that leads to health and safety issues, including broken bones from falls and bedsores
All of these errors can put residents of the nursing home at risk. It is crucial to collect evidence of the wrongdoing of individual caregivers and staff as well as the nursing home itself to establish liability in your claim.
Proving Fault
It is not always clear what happens when a resident is injured or falls ill. An experienced nursing home abuse and neglect attorney can compile and sort through the evidence and help you build a compelling case.
Facilities that accept Medicare patients must abide by federal regulations. This includes a specific requirement to ensure that the environment around residents is as free of accident hazards as possible. Medicare mandates that all residents be under adequate supervision with access to assistance devices to prevent falls and injuries. If the nursing home fails to comply with these regulations, a civil lawsuit can be filed.
Calculating Damages for Nursing Home Abuse or Neglect
Settlements and awarded damages in nursing home abuse or neglect lawsuits can range from hundreds of thousands to millions of dollars. A skilled nursing home abuse attorney can review the facts and determine the value of your case.
There are three forms of potential damages in a nursing home lawsuit:
- Economic damages are monies that can be calculated, such as medical expenses.
- Non-economic damages are more subjective and deal with the pain and suffering of abuse and neglect.
- Punitive damages are awarded as a means of punishing defendants for conduct constituting “actual malice” or a “conscious, reckless and outrageous indifference to the health, safety and welfare of others” (W.V. Code § 55-7-29).
Some states limit the amount of non-economic and punitive damages awarded in a nursing home lawsuit. For example, West Virginia caps non-economic damages at $250,000 under the Medical Professional Liability Act, but this amount raises to $500,000 if death or permanent disability is involved.
W.V. Code § 55-7-29 caps punitive damages at the value of compensatory damages multiplied by four or $500,000, whichever number is higher. This punitive damages cap applies to all personal injury claims in West Virginia, including nursing home abuse claims.
Why You Need a Nursing Home Abuse Lawyer
The nursing home facility has more means and a legal team of its own to fight claims. They may offer you a settlement far below what you’re owed, and the amount may not cover what you need to recover medical co-pays and ongoing expenses from the abuse or neglect.
It is important to seek legal counsel as soon as possible if you believe your loved one is being neglected or mistreated in a nursing home. At Colombo Law, we fight to recover the maximum compensation you and your family deserve. Our team accounts for all of the physical and psychological injuries your loved one has suffered at the hands of their caregivers and gathers compelling evidence to prove your case.
Please call Colombo Law at (304) 599-4229 today for a free case review. Our nursing home abuse lawyers serve clients in Morgantown and throughout West Virginia.
