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Recovering Damages for Nursing Home Abuse
Nursing home abuse and neglect can lead to personal injuries and property losses ranging from minor inconveniences to life-threatening situations. If you (or a loved one) have experienced personal injuries or property losses as a result of nursing home abuse or neglect, you may be able to recover monetary damages to help make up for your losses. An attorney experienced in elder law can advise you on whether you may have a legal claim for damages and the necessary steps you need to take to ensure that your legal rights are protected.
Informal Dispute Resolution Methods
Sometimes, after experiencing nursing home abuse or neglect the first step is to register a formal complaint with the facility or with the appropriate government agency. Most states have a long-term-care ombudsman program designed to help residents and their families resolve complaints against nursing homes. Generally, ombudsmen handle simple complaints, such as obtaining reimbursement from the nursing home for lost or stolen items; however, they may not be equipped to handle serious problems involving lack of adequate care. Accordingly, it may be best to use an ombudsman program for non-life threatening situations. In cases involving serious personal injury, wrongful death, or substantial asset loss, and experienced elder law attorney can work with you to ensure your interests are protected and that you receive compensation for loss.
In most states, the department of health includes divisions that oversee nursing homes and the enforcement of nursing home regulations. Complaints filed with this state agency must be investigated and, if substantiated, the health department will issue a citation, impose a fine, and require corrective action. Although the nursing home may be held accountable as a result of health department action, the injured resident is not compensated via this complaint-resolution mechanism.
Sometimes, Litigation is Best
To ensure victim compensation, the best remedy may be to take private legal action in state court against the nursing home. Each state has its own laws regarding lawsuits against assisted-living facilities and care-providers, however, nursing home abuse and neglect, and in the most serious cases wrongful death are the most common. Some states also have unfair business practices laws that allow an individual to sue, but these laws generally offer little in the way of personal compensation. An elder law attorney can advise you whether your state has an effective unfair business practices law that can be used in conjunction with a neglect and abuse or wrongful death case to obtain remedial action and recover damages.
Because many nursing homes rely on the federal Medicare and Medicaid programs for a portion of their business, some lawsuits against nursing homes can be brought in federal court under the Federal False Claims Act qui tam provision. The qui tam law allows suits on behalf of the government to be brought by anyone who has direct knowledge that Federal money is being taken under false pretenses (such as by falsely claiming to provide adequate nursing care and being paid federal money for that care). If the government takes the case and recovers money, the plaintiff can get as much as twenty-five percent of the damages recovered. If the government does not take the case, the plaintiff and his or her attorney can litigate the case in Federal court, in which case they will be entitled to up to thirty percent of the money returned to the government.
When litigation is the best course of action to secure a recovery in a particular case, it is essential that the attorney representing the plaintiff have experience in elder law. Local nursing-home-reform activists are often aware of attorneys skilled in this area of practice. Experienced counsel is a must in nursing home abuse cases, because the nursing home will have counsel who is well versed in the law and is experienced with litigation.
Preparing for Litigation
Before selecting an attorney, a potential plaintiff may be well advised to educate himself or herself about the legal requirements applicable to nursing homes in their state. Again, local activists may be able to help with this challenge, or potential litigants can visit their local law library and request assistance from the law librarian. It may also be useful to go to the local courthouse to check for other lawsuits that have been filed against the offending nursing home or others in the area, to see what a complaint looks like and become familiar with the problems that other plaintiffs have encountered. If potential plaintiffs familiarize themselves with the basics of nursing home law, they will be in a better position to choose the right lawyer and to understand what their lawyer is telling them about their case.
It is also important that injured parties assemble all available evidence of the abuse or neglect before meeting with their attorney. Documenting the abuse or neglect is critical; keeping a journal or writing a detailed summary of the situation, including names, dates, and other particulars can be used as evidence. Information can be gathered from other family members, or even nursing home staff members, who may be willing to be witnesses. If a particular family member has power of attorney, he or she can request the nursing home records. If a complaint was made to the state and the complaint was substantiated, a copy of those documents will also be an important part of the record.
In cases involving personal injuries, the most important records may come from the injured resident's physician, especially if the physician is not under contract with the nursing home. Hospital and emergency room records can also help substantiate the resident's condition. Having all of these records and notes organized before meeting with an attorney can help the attorney quickly determine whether a valid legal claim exists.
Conclusion
If you have suffered losses as a result of nursing home abuse or neglect, you may be able to recover monetary damages to help compensate you. Contact an elder law attorney to learn more about your legal rights.
Form: Nursing Home Abuse Intake Form
To read and print out a copy of the Form please link below.
Nursing Home Abuse Intake Form
You can download a free copy of Adobe Acrobat Reader here.
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