Many nursing homes suffer from understaffing, high turnover rates and other issues that often result in a diminished quality of care. When older adults suffer injury at the hands of the individuals charged with their care, there may be actionable claims against the nursing homes that employ them.
However, these claims can often be difficult to prove because the victim may be impaired or unable to explain what has happened. A successful nursing home abuse lawsuit requires that the plaintiff establish the following:
Duty of Care
Nursing home abuse cases may be based on medical malpractice grounds or negligence principles. Medical malpractice cases arise when a healthcare provider fails to provide the level of care required of the same type of provider in a similar location and specialty. The standard of care is the type of treatment that is expected under the circumstances. A negligence case is based on the concept that the defendant owed a legal duty to the plaintiff. This legal duty may be based on a contract, such as the nursing home agreement. Alternatively, it may be based on industry practices and accepted standards.
Breach of Duty
After the legal duty is established, the plaintiff must show that the defendant breached it. In medical malpractice cases, this requires showing that the defendant deviated so far from the standard of care that it constituted a breach. In a negligence case, this usually requires showing that the nursing home did something that it should not have done or failed to do something that it should have done.
Causation
The plaintiff must also prove that the nursing home’s breach of duty was a primary cause of the injury that the victim sustained. Even if a nursing home resident is hurt, a negligence claim may not always be available. The claim must be grounded on the idea that the nursing home’s actions or failure to act resulted in the injury. If no action on the part of the nursing home can be linked to the injury, recovery will not be possible. Often in these types of cases, a medical expert may need to be able to testify about the nursing home’s negligence.
Damages
The last element of a nursing home abuse claim is damages. Damages are the specific harms that the victim suffered. Damages are intended to compensate the victim for any injury or mistreatment that he or she sustained. Damages to nursing home residents usually include the cost of necessary medical treatment caused by the abuse. Additionally, the victim may be able to recover compensation for the physical pain and suffering that he or she endured, emotional distress or mental pain and suffering.
These damages are often established by evidence presented by the lawyer representing the nursing home abuse victim. The nursing home abuse lawyer may present medical evidence that establishes that an injury caused by abuse was sustained by the victim. He or she may also present pictures of these types of injuries. There may be records at the nursing home that establish the incident that resulted in the victim’s injury, such as an injury report. Loved ones may be able to help document these injuries. The family or the victim may keep a journal in which these injuries are mentioned. There may be security cameras that feature the abuse. Medication bottles may be kept, indicating the type of medicines that were necessary after an attack. Other nursing home staff or residents may have witnessed the abuse.
In addition to these types of damages, the court may award punitive damages. Punitive damages are damages that are not directly linked to monetary loss like other forms of damages. Instead, they are intended to punish a defendant and deter similar conduct in the future. These damages are reserved for the most egregious of cases. They are less likely to be awarded in negligence cases if the injury was an accident. However, when abuse was intentional, they may be awarded.
Complications in Nursing Home Abuse Cases
It may be difficult to establish the elements involved in a nursing home abuse case. Aging residents may have declining health. They may find it difficult to communicate about the injury, or they may not even remember it. Additionally, it may be difficult to establish that the resident’s declining health is due to the abuse and that it would not have occurred simply because of the natural aging process. It may be difficult to gather the evidence necessary to establish the claim.