Filing a negligence claim against a nursing home is not an easy undertaking. On average, a lawsuit can take somewhere between 18 and 24 months to complete. Before pursuing a claim, it is important to determine the regulations on the standard of care, what kind of conduct warrants a lawsuit, and the nursing home lawsuit steps. In this article, we will take a look at each of these essential elements.
Regulations on Standard of Care in Nursing Homes
Nursing homes that accept Medicare are required to follow Federal Regulations which lay out the required standard of care. One of the basic regulations provides that a nursing facility should ensure that:
- The resident environment is reasonably secure from hazards
- Each resident gets adequate assistance and supervision devices to avoid accidents
When to File a Civil Lawsuit Against a Nursing Home
There are many accidents, failures to act, and intentional acts that render a nursing facility liable, either due to an employee’s conduct or because of a policy or standard practice in the nursing home. Here are some examples:
Failure to Keep the Nursing Home Facility Safe and Hazard Free
This refers to dangers that the staff is aware of or must be reasonably aware of. It includes prevention of incidences such as slip and fall accidents or keeping residents from attacking each other.
A nursing home facility can be sued if it hires an employee who neglects, abuses, or intentionally harms a patient. Failure to provide proper and adequate training to employees is also ground for negligent hiring.
The staff at a nursing home facility is responsible for supervising residents to prevent incidents of falls, self-inflicted injuries, or engaging in dangerous behavior.
Failure to Maintain Appropriate Health Policies
A nursing facility can be sued for negligence when it fails to maintain certain health standards including cleanliness and proper sanitation in common areas and resident rooms.
Failure to Offer Appropriate and Adequate Medical Treatment
Medical practitioners and staff must adhere to a certain standard of care in nursing home facilities. When sub-standard medical care causes harm or injury to a resident, you can press charges against the facility or medical professional who was in-charge of the resident.
Filing a Claim Against a Nursing Home Facility
Conducting a pre-suit investigation is one of the crucial steps in a nursing home lawsuit. The process begins with the assessment of the facility’s conduct to see if it follows the Federal and State regulations. Medical records of the resident, starting from the time of admission to the facility, must be gathered and reviewed thoroughly. Past records may be necessary in cases where a resident is found to be in a worse condition than before they joined the nursing facility.
Medical records can run up to 5,000 pages, and knowledge of medical language, abbreviation, and diagnosis will be required to identify the area that will help file and strengthen a nursing home lawsuit. It is also important to look into the nursing home’s history including past lawsuits and violations.
Issuance of a Notice of Claim and Expert Report
If there is sufficient ground to launch a claim, your hired lawyer will issue the nursing home facility a Notice of Claim (NOC), a letter informing the nursing home of the injury and your intention to pursue a nursing home lawsuit. After serving the NOC, your attorney will proceed to file a claim in court. The nursing home will be served with a citation that notifies them about the lawsuit. The facility is given a month to respond to the citation.
After the defendant files their response in court, your lawyer will file an expert report in court. The report identifies the required standard of care and shows how the defendant (nursing home) failed to satisfy this standard and the relationship between their failure to adhere to the required standard and the injury caused. After serving the expert report, the defendant gets the chance to object to the report. Court hearings may be conducted to determine the validity of the expert report.
At this stage, the plaintiff and the defendant are given the opportunity to gather additional evidence and exchange information. Oral depositions are also a part of the process.
Settlement negotiations may occur anywhere between the time you file a nursing home negligence lawsuit and the discovery phase. Settling of cases before they go to trial can help reduce court and litigation expenses while still providing you with the same damage award you are likely to get after a trial.
During settlement talks, the defendant offers a compensation amount to the plaintiff. You can either respond by accepting or rejecting the offer. You may also respond by giving the defendant a counter-offer.
An agreement is drafted and the lawsuit is withdrawn if the plaintiff and defendant agree on a price. However, if you fail to reach an agreement, the judge will usually order for mediation before allowing the case to enter the trial phase.
In mediation proceedings, a neutral person acts as a third party to the case and hears arguments from the plaintiff and defendant before proposing a solution. Mediation can last up to two days. A settlement agreement will be drafted, and the case will be dismissed if the mediator succeeds in finding a solution that works for both sides. However, if the mediator fails to reconcile the involved parties to a settlement offer, the case will proceed to trial.
In a trial, both parties argue their points before a judge and the jury. The trial may take a few days to two weeks depending on the complexity of the nursing home negligence lawsuit and the deliberations of the jury. After both sides have argued their case and provided evidence, the jury will deliver a verdict.
Any damage award is disbursed within 30 days of a successful mediation, settlement negotiation, or court verdict. If the suit involves the death of a nursing home resident, a probate court needs to approve the settlement.
Factors Affecting the Conclusion of a Nursing Residence Negligence Claim
After an attorney has found an expert to evaluate all the evidence, the expert will be required to go through the information and present their findings in the form of an expert report filed in court. Many experts are doctors who have busy schedules. Therefore, it may take a while for the report to be completed.
The settlement agreement lays down the period within which the defendant should submit payments. If a lawsuit involves multiple defendants, it is likely that the defendants will have different times for settling their claims. In the case of liens, such as Medicaid or other outstanding bills, your attorney will have to pay them off before giving the final settlement amount to you.
The process of filing a nursing home negligence lawsuit can be time-consuming and a bit complicated. However, with the right legal assistance and expertise, the process could run smoothly.