When a nursing home has failed to live up to its legal duty and has injured your loved one, one of your first thoughts is that you want justice and accountability. These can come to you in the form of financial compensation that you will recover in a nursing home lawsuit. You have much work to do before you reach the point where you receive a settlement check or jury award in your case.
Nursing home lawsuits are all about proof. If you do not have it, you do not win. Nursing homes will not settle what they believe to be weak cases. Your first step is to contact a nursing home abuse lawyer, and they will investigate your claims and help you prove nursing home negligence.
The Elements of a Nursing Home Negligence Case
A nursing home negligence case will come down to:
- The nursing home owed your family member a duty of care to act reasonably under the circumstances (this is often the most straightforward element to prove in a nursing home negligence lawsuit – a nursing home owes a duty of care to a resident that they have taken into their facility)
- The nursing home breached their duty of care by doing something that the average nursing home will not do (for example, failing to have and implement a plan to prevent bed sores or treat one that the resident developed)
- Your family members suffered an injury.
- The nursing home’s actions were the proximate cause of your loved one’s injury.
Examples of Nursing Home Negligence
Here are some examples of things that courts may consider nursing home negligence:
- Your family member suffers an injury in a fall when nursing home staff does not Implement a fall prevention plan or they do not follow the one that they have.
- Pressure ulcers that occur due to the failure to shift your loved one’s position with regularity (these bed sores can become infected when nursing home staff fail to properly clean and treat them)
- Urinary tract infections that happen because of a failure to frequently clean and change an incontinent resident
- Adverse reactions to prescribing the wrong medication or prescribing a drug that does not go along with another one that the senior is taking
You Must Meet Your Burden of Proof to Win Your Case
You have the burden of proof to demonstrate that the nursing home was negligent. It is not so much about what happened but what you can prove happened. If you do not have the evidence, it is as if it never happened.
The standard of proof in a nursing home negligence case is the same as in every other personal injury action. You must prove your case by a preponderance of the evidence. The standard of proof equates to demonstrating that your facts and arguments are more likely than not to be true. The preponderance of the evidence is the same as showing that your case was 51 percent likely to have happened.
Although the standard of proof is less than the one required in a criminal case, it may not always be easy to meet in a nursing home negligence case. Without an experienced lawyer, you will almost certainly be unable to live up to your burden of proof.
You Must Have Evidence to Back Your Claims
In many cases, a negligence action comes down to proving what the defendant did. You will need to document and verify their actions to argue that the defendant did not live up to their duty of care. You will take the defendant’s actions and compare them to what a reasonable person did under the circumstances. If the defendant’s conduct fell short, they should be liable.
The issue in your case is how to get the evidence necessary to prove exactly what the defendant did when your loved one may be unable to testify. Your family member may not be verbal, nor may they be a persuasive witness themselves. In many cases, plaintiffs file nursing home negligence actions as wrongful-death lawsuits, and your loved one is no longer around to testify. An experienced wrongful death attorney will know how to navigate this extremely difficult process.
Your Lawyer Helps You Assemble the Evidence and Your Case
Gathering evidence is where an experienced nursing home attorney is invaluable. The nursing home will make it as hard as possible for you to get any documentation or proof. They know that you will use it against them in a lawsuit.
Here are some sources of evidence that can help prove that the nursing home breached its duty of care in your case:
- Witness testimony from people who saw an incident
- Testimony from people who were familiar with the conditions at the nursing home
- Medical records that detail the care given to your family member
In a nursing home case, your most important source of proof is often an expert witness. You may need multiple experts for your case. For instance, you will need a testifying physician who can testify that the nursing home did not give necessary medical care. In addition, you may need a specific nursing home expert who can testify about practices at a nursing home and how staff must provide daily care to a resident.
It will also be beneficial to your case if you can document what you saw when you visited the nursing home or what you heard when you spoke to your loved one. If you can take pictures while the negligence was occurring, it can help prove the nursing home’s actions. Expert witnesses give an opinion based on their specialized knowledge but do not see what actually happened. Your own testimony, combined with any photos or videos that you took, is first-hand evidence that you can use to persuade a jury.
Proving Injury Can Present Challenges in a Nursing Home Case
In the usual personal injury case, proving that you suffered an injury is one of the minor challenging parts of your case. In a nursing home lawsuit, showing actual damages may be more challenging. Here, you will need to prove exactly how the negligence injured your family member when they may already be sick.
However, a significant element of nursing home neglect cases is pain and suffering. Even if the nursing home’s negligence or abuse did not cause physical injury in itself, your loved one might have suffered because of it. Their daily life and existence can have been made far worse by the nursing home’s negligence. Your family member may have suffered from either physical pain or depression because of what the nursing home did.
Here, your testimony about what you witnessed from your family member may be invaluable. Someone will need to detail exactly how your loved one suffered for your family to receive compensation.
Nursing Homes Will Fight Your Case on Causation
One of the areas where you may have difficulty in a nursing home negligence lawsuit is proven causation. The nursing home may argue that your loved one’s injury was not because of their actions but rather because of their physical condition. As the plaintiff, you have the burden of proof to show all four elements of the negligence test.
Causation is an essential element, and without proving it, you cannot win. You will need to show that your loved one’s injury will not have happened but for the nursing home’s wrongful actions. Even if the nursing home acted exceptionally poorly, it might not matter if they were not really at fault for the health condition. In that regard, some nursing homes can get away with their own negligence and escape legal accountability.
The nursing home is likely to use a multi-pronged strategy to attack your case on the basis of causation. They may use the following to undermine your contentions:
- Nursing homes have their own causation experts who testify in numerous cases and who use their own expertise to argue that the nursing home really was not at fault for what happened to your family member.
- Nursing homes will often make full use of the autopsy report and highlight any other potential causes of death.
- They will constantly challenge what your family member’s treating physician has concluded with their own evidence.
- Your case rests mainly on your own expert witnesses – the nursing home may challenge both your experts’ qualifications and their conclusion.
- The nursing home will try to normalize your family member’s health condition to a jury and show that the ultimate result might have happened in any one of a number of ways.
The resident is often sick when they enter the nursing home. Otherwise, they do not need intensive long-term care. The nursing home will likely use that to defend themselves and claim that they did not cause your loved one’s injury. You will need to use various sources of evidence available to you to show that the nursing home indeed was responsible for what happened to your family member.
Nursing Home Lawyers Work with Experts to Prove Your Case
Here is where an experienced nursing home attorney knows how to work with experts to use medical records to prove causation. Your personal injury lawyer may work with one or more doctors who can review the documentation of your loved one’s care and their physical condition to verify that the nursing home’s neglect was what caused the injury. The attorney can also question and speak with witnesses who saw what happened over time.
In many cases, the nursing home’s wrongful conduct is what “puts your family member over the edge.” they may have already been sick, but they may not have died or suffered a severe injury had it not been for what the nursing home did (or did not do).
Another challenge is that the nursing home’s conduct may have been one of many elements that cause injury to your loved one. For example, there may be several causes of death listed on your senior’s death certificate. They may have had infected bedsores, along with several other ailments that can have contributed to their passing.
Causation is often where many nursing home lawsuits fail. Nursing homes cannot retroactively document and invent care that never happened. Oftentimes, all they can do is acknowledge what they really did but claim that it did not matter in your family member’s long-term health outcome. Your attorney will be ready to counter this argument with the actual evidence, as shown by your senior’s health records.
How a Nursing Home Attorney Helps Your Case
Here is how an experienced nursing home lawyer will help your family hold the facility accountable for the injuries that your senior suffered:
- They will quickly get to work investigating what happened and gather the evidence necessary to prove the claim.
- They will determine how your loved ones suffered an injury and come up with a value that should be attached to the harm.
- Your lawyer will select the appropriate experts to work with to help prove your case.
- The attorney will obtain the necessary medical records from the nursing home (which you have a legal right to, and they may be making it difficult for you to get)
- Your lawyer will construct the proper arguments that show that the nursing home violated its duty of care and will use the appropriate evidence to match.
Nursing home cases can be complex and challenging. They are made even harder by the fact that the nursing home has lawyers at their disposal who have experience in defending them against negligence claims. To get accountability and justice, you often need to take the fight to the nursing home legally. Then, the nursing home will have to answer for what they did. Not only so that you may receive financial compensation, but your actions may mean that others do not suffer as your loved one did.
Even if you think the chance the care facility that is taking care or formerly took care of your loved one was neglectful is remote, you must contact a Florida injury lawyer who works in that area of the law.