How Do I File a Nursing Home Lawsuit?

Nursing home abuse comes in different forms, from physical abuse to financial exploitation and neglect. There are a number of resources available for people to help them protect victims of nursing home abuse, which in some situations requires immediate intervention by law enforcement and social services.

However, there's another way to help victims of nursing home abuse pick up the pieces of their lives — filing a nursing home lawsuit. Below, you will find information on the process as well as important factors to consider.

The Process at a Glance

Whenever someone files a civil lawsuit (referred to as the plaintiff) the process generally involves:

1. Investigating facts (determining damages)
2. Making a demand
3. Filing a complaint
4. Serving the complaint
5. Exchanging discovery
6. Entering negotiations
7. Reaching a settlement or trial verdict

Unlike a criminal case, a civil lawsuit can provide an abuse victim with some financial recovery or even a court order directing certain conduct, like halting an eviction.

Who Can File a Nursing Home Lawsuit?

While criminal cases are brought by the state, civil cases are brought by individuals who have standing to do so, that is, those who have suffered a legal injury. In most cases, this will be the victim of nursing home abuse, as loved ones cannot file suit, especially if they were not a party to the nursing home contract.

This can get complicated for victims who have diminished mental capacity. In those situations, there may be a few steps to take before filing suit. You'll first want to determine whether the resident has a current power of attorney (POA), a legal document authorizing another person to make decisions on the resident's behalf. A POA may allow a loved one to file suit in a victim's name, but their ability to file suit will depend on the language in the document, whether the document is current or expired, and whether the document was signed while the victim was of sound mind.

Without a POA, you'll likely need a court order naming a guardian (or conservator) for the abused resident. A guardianship acts in much the same way as a power of attorney, except that it is established by the court and obtaining one can add time and cost to the process.

Who Do You Sue?

Once you determine who is filing the lawsuit, you next need to identify the defendants. This will depend on several factors, but typical defendants include:

• The individual(s) that actually caused the legal injuries
• Supervisors who were aware of the injuries or who were involved in hiring and supervising the offenders
• The companies that own/operate the nursing home

In a lawsuit, it's crucial to make sure that you name the right person or company. Misidentifying a defendant is frustrating, but it can also delay a case and add unnecessary costs. However, it's sometimes hard to determine who's liable early in the process. Because of this, most states allow you to name "Doe" defendants, essentially place holders that you can rename once you learn a defendant's identity.

What Are Your Legal Claims?

Getting this right is also important because listing the wrong claims or failing to adequately state claims could lead to the dismissal of your complaint. The specific claims in a nursing home lawsuit will depend on the laws of your state, but can include:

• Negligence
• Negligent hiring
• Elder abuse
• Medical malpractice
• Breach of contract
• Other statutory violations

Filing in Court: Beware of the Arbitration Clause

Once the plaintiff, defendant, and claims are laid out in a complaint, it can then be filed in a court that has the jurisdiction to hear the case. This is usually a court in the county where the injuries took place. When filing, you'll have to pay an initial filing fee unless you qualify for a fee waiver.

Also, the date you file a complaint matters for at least two reasons. First, a statute of limitations could bar your case if the complaint is filed late. Second, filing a complaint starts the service clock, as you usually have 30-60 days to serve a filed complaint on the defendants or you could face dismissal.

In addition, if a case implicates a nursing home contract, the agreement could have language limiting liability or requiring arbitration. These contract provisions may not have been obvious when the agreement was signed and, because of that, may not be enforceable. However, if such provisions are at play in your case, you could find yourself litigating these issues before you even get to the merits of your case.

Next Steps: Get an Attorney To Look at Your Nursing Home Claims

As you can see, there are many considerations that go into filing a nursing home lawsuit. That's why it's critical to review any case with a legal professional before proceeding. There are attorneys that specialize in nursing home abuse who could help you determine your next steps. Get matched with an attorney near you today to have the merits of your case reviewed by an experienced professional.