Older adults are moving into nursing homes and other care facilities at an increased rate. According to the Centers for Disease Control and Prevention (CDC), almost two million people in our country now live in nursing homes. The unfortunate correlation is that more and more older adults now suffer injury or abuse at the hands of the very persons charged with their care. Often these injuries are caused by the negligence of the nursing home staff, but injuries and abuse also result from the deliberation actions of caregivers.
If you're making a legal claim for nursing home injuries and abuse, what does the process look like, and how do you go about proving damages? That will be the focus of this article.
Bringing a Lawsuit
A civil lawsuit is one option through which you can pursue a claim for damages stemming from a nursing home injury or case of abuse.
In a civil lawsuit, a petition or complaint is filed with the court clerk of the local county or state court. After the nursing home responds to the lawsuit by filing similar papers with the court, the parties enter a period known as “discovery” during which documents are exchanged and witnesses are deposed. Eventually, if the parties are unable to reach an out-of-court resolution of the case, the court will schedule the case for trial.
Learn more about the Timeline of a Personal Injury Lawsuit.
Proving the Case at Trial
At trial, there are several legal elements to your claim, and you (and your lawyer) will have the burden of proving all of them.
Typically, in a case of injury caused by the negligence of the nursing home, you will be required to prove the following:
- the nursing home owed a duty of care to the resident (this is a given based on the care contract)
- the nursing home breached the duty of care to the resident (they did something they shouldn't have done, or failed to do something they should have done), and
- the resident suffered harm as a result.
In a case where the nursing home resident has been abused by nursing home staff members, the legal elements that must be proved will vary slightly.
Types of Damages
Assuming all of the other elements can be proved, the resident must also prove the specifics of the harm that was suffered.
Damages are typically intended to compensate the resident for any injury or abuse suffered. There are several types of damages, including:
- physical pain and suffering
- mental pain and suffering
- emotional distress, and
- cost of necessary medical treatment.
Lost wages or lost income may also be elements of claimed damages. However, since most nursing home residents are no longer employed, these kinds of losses usually aren't a factor.
In addition to compensatory damages, the court under appropriate circumstances may also award punitive damages. Unlike compensatory damages, punitive damages are meant to punish a defendant, and to deter similar behavior in the future.
For the court to award damages, there must be evidence that the nursing home resident suffered harm. Often, a case of injury caused by nursing home staff members will be the easiest to prove. Injuries result in medical treatment, which leaves a trail of medical records related to the patient’s complaints, and a history of the incident.
In most cases of nursing home injuries, the nursing home staff as well as the resident must complete an injury incident report. This documentation, completed at the time of the injury, can be a valuable resource in proving damages later on in court.
Not surprisingly, in cases of abuse one rarely finds the extensive paper trails that normally accompany an injury incident. Evidence of abuse might be more difficult to document, and is typically associated with the resident’s emotional or physical condition. The types of evidence used to support a claim for damages in cases of abuse can be as varied as the individual causes of the abuse.
Regardless of the nature of the injury or abuse, or the cause, it is important to document everything as completely as possible. The documentation can later be used in pursuing any criminal charges or civil claims against the nursing home. Documentation that may prove useful can take any number of forms, including:
- diaries kept by the resident or close family members
- photographs of a resident’s bruises or other injuries
- notes summarizing conversations with the resident or staff
- photographs of medications given or prescribed to the resident, and
- notes on personal observations of physical or emotional conditions kept by family members