There may come a time in your family’s life when moving a parent or grandparent to a nursing home becomes necessary. They need more care and supervision than you can provide for them. Continuing to live independently simply isn’t possible.
Nursing home care may be temporary, such as to allow time for recovery following a surgical procedure or stroke. In other cases, your loved one is going to need constant care for the remainder of their days.
Regardless of why or how long a nursing home is required, you trust that the facility will deliver on its promise of care. You believe that the person you love will be in the right place for their needs. You entrust the facility with their very lives.
What are your options if the nursing home breaches its duty of care and your loved one pays the price?
The law may not be able to protect nursing home residents from abuse and neglect. But it does protect your right to recover financial compensation if they are subject to either. Here is how to file a claim against a nursing home if it fails you or your loved one.
Consult With the Right Attorney
It is extremely difficult to successfully pursue a claim against a nursing home. Although the law is clear on the protections these facilities must provide, gathering evidence of their failures is complicated. What appears to be an obvious failure to you may nonetheless be a challenge to prove.
Hiring a seasoned nursing home abuse lawyer with a successful history of prosecuting these claims should be your first priority. Lawyers representing plaintiffs in these cases need to know much more than the letter of the law. They must understand the psychology of abuse, grasp the medical consequences, and have relationships with experts who help them provide evidence.
Nursing home abuse attorneys work on a contingency basis, which means they collect no fees unless you receive compensation. Therefore, there is no reason to delay consulting with a lawyer. They will listen to what you know, ask the right questions, and advise you regarding strengths and weaknesses of your claim.
Plaintiffs’ lawyers provide legal guidance and advocate for their clients at every turn. Moreover, they do the difficult work of gathering evidence that supports claims of abuse and neglect. Decisions about your claim are yours to make, but your lawyer will provide the information you need to make them.
Choose the Right Type of Claim to Pursue
Some claims against a nursing home will not result in compensation for damages. Damages include such things as medical expenses, recompense for pain and suffering, and — in the worst-case scenario — burial expenses. If you seek compensation from the wrongdoers, you will need to file the right type of claim.
Prevailing in a breach of contract claim may mean you recover the cost of nursing home expenses and attorney’s fees. As the name implies, you’re proving the nursing home contract guaranteed certain deliverables but failed to provide them.
Prevailing in a tort claim, on the other hand, provides compensation for economic and noneconomic damages. A tort is an act or inaction that results in injury or harm for which the victims may receive compensatory damages. The claim may be for personal injury or, if the victim dies because of abuse or neglect, wrongful death.
Tort claims are covered by a nursing home’s liability insurance. Therefore, you will file a personal injury or wrongful death claim against its coverage. The limits of that coverage, combined with the value of the victim’s damages, will determine the sum that may be recovered.
Prove Your Claim
Nursing homes are largely subject to the laws, rules, and regulations of the state in which they operate. However, nursing home residents are entitled to certain rights and protections under federal law as well.
These include provisions such as rights to privacy, medical care, visitation, information, respect, financial management, and disclosure of services and fees. They also include freedom from discrimination, reprisal for complaints, and abuse and neglect. When the freedom from abuse and neglect is violated and someone is harmed as a result, they can file a claim.
To prove a nursing home claim requires evidence of four key elements. First, the facility owed a resident a duty of care. Second, it was negligent when it breached that duty. Third, the breach led to the injury or death of the resident. Fourth, the injury or death resulted in economic and noneconomic damages to the resident or to the family of the resident.
It’s not enough to simply state that these four elements exist in your claim. There must be evidence supporting your claim, which requires documentation, expert medical testimony, and proof of the cost of damages. You can trust that the nursing home will not offer proof without a fight, so be prepared.
Negotiate or Go to Trial
Insurance companies will do everything they can to avoid paying a claim. This is true whether you file one against your homeowners policy for hail damage or one against a nursing home. Insurance companies make profits when they don’t pay claims.
The value of a nursing home claim can be substantial. With so much money at stake, every attempt will be made to avoid disclosure of information. The insurer will also do what it can to lower the value of the damages claimed.
Your nursing home abuse lawyer will make every good-faith effort to negotiate a settlement of your claim without going to trial. But only by filing a lawsuit in civil court can the nursing home be compelled to provide certain documents, statements, and records. Evidence contained in these sources is often critical to meeting your burden of proof.
A lawsuit opens the door to legal access to “discover” certain details the nursing home is otherwise able to hide. When you file a claim against the facility’s insurance coverage, be aware that you will likely follow with filing a lawsuit. It is the only way to bring to light the evidence you need to prevail.
Only by filing a claim or lawsuit can you hold a nursing home accountable for its actions or inactions. Of course, the nursing home and its insurer will leverage a stable of defense attorneys against you. You need to fight fire with fire.
Make sure you have excellent legal representation from the outset. You cannot reverse the harms and losses you have suffered. But by pursuing justice, you can help ensure that no other family endures the same.