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 to help 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.

Investigating Facts and Making a Demand

Before filing a nursing home neglect lawsuit or nursing home abuse lawsuit, victims and their family members should investigate the facts. This means gathering all the evidence regarding personal injuries that occurred through different types of nursing home abuse or nursing home negligence. Signs of nursing home abuse include serious injuries in patients, such as:

• Malnutrition, untended bedsores, or pressure ulcers
• Mental and emotional mistreatment
• Physical and sexual abuse, including sexual assault

Neglect cases and nursing home abuse cases will always involve violations of some standard of care. In general, the law imposes a duty for caregivers and long-term care facilities to exercise reasonable care in tending to their nursing home residents. Unreasonable medical care or lack of proper health care can lead to serious physical injuries. For example, a patient in an unsanitary nursing home can fall on a contaminated floor and suffer sepsis or broken bones.

A nursing home patient who does not receive adequate care from the staff members of an assisted living facility may become the subject of a civil lawsuit, such as:

• A negligence lawsuit
• A wrongful death lawsuit (if the victim passes away)

Negligence and wrongful death lawsuits can be filed against both nursing home facilities and nursing home staff individually. After investigating the facts, a nursing home abuse attorney will send a demand letter to these parties. The demand can request financial compensation for:

• Past and present medical bills to remediate victims
• Future medical expenses to maintain ongoing medical treatment
• Damages for a nursing home resident's pain and suffering

In many negligence cases, victims can secure their legal rights to compensation through a pre-lawsuit settlement. One disclaimer, however, is that not all cases can be quickly settled. Sometimes, a lawsuit must be filed in court to push the defendants to negotiate.

The Legal Process at a Glance

Whenever someone files a civil lawsuit, they become a suing plaintiff. The process in a legal action generally involves:

1. Filing a complaint (the actual text of the lawsuit)
2. Serving the complaint (physically handing the lawsuit papers to the defendants)
3. Exchanging discovery (such as medical records and other important case facts)
4. Entering negotiations (such as by revisiting demands made prior to filing)
5. Reaching a settlement or trial verdict

A civil lawsuit can provide an abuse victim with adequate financial recovery. A court can also issue an order directing or stopping certain conduct, such as halting bad behavior or improving policies in a nursing home.

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. Victims and their family members have standing if they have suffered a legal injury under the hands of a defendant.

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 power of attorney may allow a loved one or family member to file suit in a victim's name. When it comes to the POA, their ability to file suit will depend on:

1. The language in the document;
2. Whether the document is current or expired; and
3. Whether the document was signed while the victim was of sound mind

Without a power of attorney, you'll likely need a court order naming a guardian (or conservator) for the abused resident. A guardianship or conservatorship (depending on state law) acts in much the same way as a power of attorney, except that it is established by the court. 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, such as caregivers
• Nursing home supervisors who were aware of the victim's 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 (unknown defendants). These are essentially placeholders 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 with the jurisdiction to hear the case. This is usually a court in the county or locality 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. This is a filing time limit that varies depending on your state's laws. 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 require arbitration. Arbitration is a private resolution mechanism that requires the dispute to be resolved outside of court. 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, many considerations go into filing a nursing home lawsuit. That's why it's critical to review any case with a legal professional before proceeding. Some personal injury lawyers provide free case reviews where you can receive some initial legal advice. In addition to offering free case evaluations, some personal injury attorneys will also wait to collect fees until a settlement has been obtained.

There are personal injury attorneys who specialize in nursing home abuse who could help you determine your next steps. Get matched with a nursing home abuse lawyer near you today to have the merits of your case reviewed by an experienced professional.