When an instance of alleged elder abuse or neglect occurs, a host of legal issues may arise. You may be confronted with issues ranging from premise liability to inadequate security to product liability to medical malpractice.
To help you understand the legal process and the potential challenges you will face in any legal battle, InjuryBoard has put together the following information to help you better understand and move through the legal process by understanding the general issues involved and what you can expect as part of the litigation of your case.
Common Categories of Legal Issues
Premises Liability – In legal terms, a resident at a nursing home is considered a business invitee, meaning that the business (the nursing home or assisted living facility [ALF]) would owe the invitee (the senior citizen resident) the highest duty of care. This means that the nursing home has a legal duty to regularly inspect the premises, discover dangerous conditions, and then make them safe for your loved one and all other residents. If the facility knows or should have known about an unsafe condition on the premises, or if he or she could have discovered the unsafe condition through reasonable inspection, they will be liable for injuries incurred.
Inadequate Security – If a facility offers its residents inadequate security that leads to an accident or injury, that facility may be liable to a lawsuit for their neglect. If a facility is understaffed, some residents are likely to receive substandard care. If it is proven that an accident resulted from inattention due to inadequate security, the facility could also be held responsible.
Medical Malpractice – If a facility’s doctor, nurse, or other healthcare provider made a medical error in providing care, it may be a case of medical malpractice and subject to a lawsuit. Medical malpractice claims, however, are frequently ineffective. In some states, the maximum amount of money recoverable in a medical malpractice suit is capped at $250,000 (excluding medical costs and lost earnings). While this may seem like a lot of money, after the costs of bringing the case to trial and your attorney’s fees are deducted, there may not be much left. As a result of these caps and depending on your location, many attorneys may be reluctant to take on medical malpractice cases.
Wrongful Death – When elder abuse or neglect causes death, a wrongful death law suit may be appropriate. As a part of this claim, it is important to determine which people are entitled to file a law suit on behalf of the deceased person’s estate. When you choose to file a wrongful death suit, you must first establish the deceased’s beneficiaries, the beneficiaries’ relationship to the deceased, and the heirs. This unearths a multitude of other relevant questions, such as wills, the estate, and whether the deceased died intestate (the person died without leaving a will or declaration).
The Importance of Power of Attorney
What is power of attorney and why is it important? People who have been given power of attorney may file suit on behalf of a victim of elder abuse or neglect. It is important to name a trusted person as an agent with power or attorney because this agent has the power to make crucial decisions that seriously affect a person’s life.
There are different types of power of attorney, but generally speaking, a power of attorney is a document in which a person who is unable or unavailable to look after his or her own affairs appoints another person or organization to handle these issues. Essentially, the appointee becomes an agent of the appointer and handles the affairs of the appointer.
For our purposes, it is important to mention “durable power of attorney.” Any type of power of attorney can be made “durable” simply by adding specific text to the document. By creating a durable power of attorney, the appointing document will remain in effect (or take effect) after the appointer becomes mentally incompetent.
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KEY STRATEGY – If a loved one plans to enter a nursing home, make efforts to have a durable power of attorney signed before the person enters the facility.
To whom should one give power of attorney? The short answer is that the best person to receive power of attorney for a loved one is the person who is most likely to be in regular contact with that loved one and the one most competent to make decisions on their behalf. Most often this person will be a close relative or a trusted friend. The closer the potential agent is to the appointee, the stronger the candidate. It is prudent to consult with an attorney prior to making this important decision.
How many people should be given power of attorney? In some cases, people decide to give more than one person power of attorney.
The Legal Process
Once a law suit is filed, you should expect an investigation and discovery period. During this time, the attorneys for both sides of the litigation (plaintiff and defendant) will research issues regarding their cases, conduct interviews, and file motions relating to their cases.
There are generally three methods by which a case can be resolved.
Settlement – This occurs when, prior to trial, the parties to the dispute agree on an outcome. Many times, the defendant agrees to pay the plaintiff an agreed-upon sum of money.
Mediation – This is a type of dispute resolution in which a neutral third party hears both sides of the dispute and then assists the parties in reaching an agreement.
Trial – In a trial, both parties in dispute present information, evidence, and witnesses before the court in an effort to achieve a resolution to their dispute. Many cases reach a settlement before going to trial.
Time Constraints of the Legal Process
When considering a law suit, you must always be aware of any statute of limitations. Generally speaking, a statute of limitations is just the maximum period of time, after a certain event occurs, that a person may bring a law suit based on that situation.
The statute of limitations for bringing a claim based on elder abuse varies by state. In some states, the statute of limitations is two years, but this limitation can be extended if the resident is legally incompetent. Sometimes there are specific requirements if the facility is owned by a government agency. Because this is a complex legal area with many variables, we recommend family members who are considering these questions or deciding whether to file suit contact an attorney as soon as possible.
Challenges of the Legal Process
There are several obstacles that complicate nursing home and ALF litigation. Here a few of the major challenges that may affect a possible suit:
Medical Malpractice Caps – As mentioned above, in some states restrictions are in place making it possible to recover only $250,000 in medical malpractice suits. While this amount of money may seem substantial, because of the high costs involved, many attorneys are unable to try this kind of case.
Decreased Legal “Value” of the Elderly – Courts often reduce the “value” placed on older adults. “Loss of consortium” is a tort remedy whereby the victim’s family is awarded damages based on loss of family relationships due to the tortfeasor’s (defendant) wrongdoing. Courts often reduce loss of consortium damages in cases involving senior citizens on the theory that because the victim is older, he or she did not have as much time left to continue family relationships as a younger person would have had. In essence, courts often de-value senior citizens because they are elderly. Their damages are often reduced to the amount of money Medicare would have paid. This renders cases involving senior citizens less profitable than cases involving younger adults. If an older adult has no insurance (which is a frequent occurrence), he or she may become extremely financially unstable due to the victimization.
Lack of Proper Insurance and Bankruptcies – Finally, facilities often create loopholes to avoid paying money when they victimize residents. There is no government requirement that these facilities carry insurance. In these cases, the facility opts to pay damages out of their own pockets. However, some facilities arrange complex systems of “shell companies.” When a problem arises and they must pay damages, they simply bankrupt the company to avoid payment to the victim. Thus, the company shields itself from litigation, payment, and responsibility for its actions.
Although the information we present on this website is designed to help shed light on the often complex legal and procedural issues arising out of elder abuse and neglect, please remember that there will be times when it’s best to consult with a legal expert regarding your situation. While this site provides good general information, an attorney can provide legal advice tailored to your situation and help guide you personally to a favorable outcome.
As a nationwide network of independent attorneys and law firms focused on personal injury law, the member-attorneys of InjuryBoard are available to assist you with a completely free and secure review of your case. Learn more about InjuryBoard and to find an InjuryBoard Attorney Member practicing near you.
Please remember that hiring an attorney is an extremely important decision and you should take care in choosing one that’s right for you. By using the information found on this website, combined with the legal advice of an attorney, you should be well on your way keeping your family safe and resolving any nursing home and elder abuse issues.