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Filing a Nursing Home Abuse Lawsuit

Asheville residents who are considering filing a nursing home abuse lawsuit must consider many factors. What effects will the legal process have on their aging parent? How long will the nursing home malpractice lawsuit take? How much money does a nursing home abuse lawsuit cost? These are among the many questions families typically ask themselves at the beginning of the process.

Families should have an idea of what to expect before even contacting an attorney’s office about filing suit against a nursing home. You can determine what questions to ask once you know about the stages of a nursing home lawsuit, allowing you to decide what is best for your family and your aging loved one and make the most of your consultation and future meetings with your attorney.

Initial Consultation with a Nursing Home Abuse Attorney

Personal injury attorneys often do not charge a fee for initial consultations with prospective clients, providing injured people with an opportunity to fully discuss their case without feeling the pressure of each passing minute. Here are some documents you can bring with you to your initial consultation to give your attorney a complete picture of your nursing home abuse claim:

  • Medical records pertaining to the injuries resulting from the abuse or neglect
  • Photos of injuries like bedsores or bruises
  • Psychiatric or psychological assessments, especially regarding emotional trauma
  • Any contracts or agreements between your loved one and the nursing home
  • Any communications between your loved one and the nursing home

This is not an exhaustive list, so bring any other documents you suspect might be important. Any information you provide to an attorney is completely confidential.

At your initial consultation, your family can discuss with your attorney how your loved one was abused or neglected and what effects it had on their life. Your attorney can help you identify what parties might be responsible and what damages your loved one may be able to recover. Your attorney will also assess what your loved one can reasonably expect to recover from their case and whether it might be a matter for settlement or for trial.

After the consultation, your attorney may conduct some preliminary investigation of your claim while your loved one decides whether hiring an attorney is the correct decision. To gain more information about your claim, he or she may perform background checks on employees of the nursing home or look into whether state agencies or other organizations have investigated the nursing home or its owners for similar incidents. Once your parent or loved one decides to proceed with the lawsuit, the attorney and their team will conduct a more thorough investigation.

asheville nursing home abuse lawyer

Investigation of a Nursing Home Abuse Claim

This may be the stage of your lawsuit that takes the longest. Nursing home abuse and neglect cases are almost never simple, so building a good case takes time, skill, and persistence. One of the most important tasks your attorney will undertake is to gather records including your loved one’s medical records from before, during and after the abuse or neglect and facility records from the nursing home. These records are necessary for determining the extent of your loved one’s injuries, their financial damages, their noneconomic damages, and other damages they may be able to collect. Facility records and even some of your loved one’s medical records will come from the nursing home, whose staff may delay and prolong providing records of their negligence or malfeasance for as long as they can.

Your attorney will also likely consult with one or more experts, who will review your loved one’s records and write a report concluding whether abuse has taken place and what effects the abuse will have on his or her quality of life. The type of expert your attorney consults will depend on your loved one’s case. He or she may consult geriatric physicians or nurses, mental health practitioners, life care planning experts, or other professionals who have years of experience in their field to provide reports or testify in your loved one’s case. Experts can provide evidence to substantiate your loved one’s claim, but they can also help you and your attorney determine how well your case will hold up in settlement negotiation or in trial. This can be invaluable in your attorney’s strategy for handling your case.

Serving Your Nursing Home Abuse Claim

Once your attorney has collected enough information about your loved one’s nursing home neglect or abuse claim, he or she will create a demand package. This will demonstrate your case to the nursing home, their insurer, and other responsible parties who may be on the hook for damages. The demand package discusses the ways in which the nursing home was negligent in caring for your loved one and enumerates the damages your loved one is seeking.

Most personal injury cases, including nursing home abuse cases, end with a settlement out of court. Negotiations surrounding the demand package can continue for several months as both sides attempt to achieve the most favorable outcome for their client. This back-and-forth is much less costly than taking the case to court, however, so both plaintiffs and defendants have an interest in settlement rather than trial.

Filing a Nursing Home Abuse Lawsuit

If negotiations fail to result in a reasonable settlement for your loved one, you and your attorney may decide to take your case to trial.  This process begins with filing a complaint with the court in the county where you live. The complaint contains much of the same information as the demand package: it describes how and why the nursing home was responsible for your loved one’s damages and it discusses the amount of money that your loved one is seeking in compensation. It also contains a demand for a jury trial in the case.

Once the complaint is filed with the court, the court imposes specific deadlines. One of these deadlines is for the completion of discovery. This process involves the exchange of information between the parties. Your attorney may request that the nursing home provide documentation of its practices such as employment information or Medicare reviews. In turn, the nursing home may request information about your loved one’s medical or mental health history or other sensitive information. Anything that is relevant to the case is discoverable by the nursing home; while your attorney can object to certain requests, if the court determines that certain documents must be produced, your attorney must comply.

Asheville nursing home neglect attorney

In North Carolina, all superior court litigants must attempt to resolve their case through mediation before the court will hear the case at trial. Mediation is a process where a neutral third party attempts to help both sides of a lawsuit reach a settlement. Both sides split the cost of the mediator’s services. At mediation, each party presents their side of the case in a presentation where both sides are present; then each party and their attorney meets with the mediator in separate rooms. The mediator brings settlement offers between the two parties and offers his or her insight into the case. Mediators are typically experienced attorneys, so their opinion of the case is valuable and can give injured people an idea of what to expect at trial. The mediator’s role is not to suggest a resolution, but rather to help parties to a casework it out for themselves. Mediation is also a final opportunity for both parties to minimize their costs and settle the case.

If mediation fails, the case will be scheduled to go to court in front of a judge and a jury. Your attorney may conduct focus groups before trial to determine the characteristics of a “good” juror or a “bad” juror to assist him or her in selecting a jury. The experts who provided their opinions in earlier stages of the trial may agree to testify on your behalf.

At the trial, both sides will present their arguments to the judge and the jury. The judge is responsible for findings of law in a trial – for example, whether a piece of evidence is admissible or how to instruct the jury on applicable laws. The jury is responsible for findings of fact in the case – for example, whether the nursing home was negligent in hiring someone who was previously convicted of a violent crime.

How Long Do Nursing Home Abuse Cases Take?

It is impossible to tell at the start of a case how much time will pass from beginning to end. Litigating a nursing home abuse case can take two years or more. However, cases that take longer than two years are rare. It is important to remember that most cases are resolved before a lawsuit is ever filed. Cases often settle in a few months to a year. Once your attorney has obtained all of your loved one’s medical records, he or she may be able to give you an idea of what to expect from your case.

Each step in the process of a nursing home abuse claim is crucial to the success of your loved one’s case. Patience and trust in your attorney are important to your peace of mind during this process. Our personal injury team offers initial consultations at no cost to you or your loved one, where your family can discuss your case and help you plan for getting your elderly relative the care he or she needs during the claim process. Contact us today for help in determining your first steps in getting your family member the compensation he or she needs after nursing home abuse or neglect.

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Lakota Denton

Lakota Denton

Lakota Denton is an Asheville, NC trial lawyer who focuses on recovering for injured people. Lakota has been practicing law in Asheville, N.C. since 2011. Lakota attended Keene State College in New Hampshire and graduated with a degree in psychology in 2000. Lakota played professional soccer after graduating from college. In 2011 Lakota graduated Cum Laude from Western New England college where he was awarded the Edward Cooley Award for Excellence in Labor Law, The CALI excellence for the future award for Labor Law, The CALI excellence for the future award for Jurisprudence Survey, The CALI excellence for the future award for Trial Methods, and was a member of the American Association for Justice Moot Court Team. Lakota has been practicing in his own firm since 2013, focusing solely on personal injury. He is a member of the American Association of Justice, the North Carolina Advocates for Justice, the North Carolina Bar association, the American Bar Association, the National Trial Lawyers, and was awarded Top 100 Trial Lawyers by the National Trial Lawyers, the 2014 Top 40 Lawyers under 40, and the Avvo clients choice award. He has spoken at the Asheville Paralegals Association Luncheon and he served on the North Carolina Advocates for Justice Auto Torts leadership team in 2017. Lakota has won numerous jury trials with verdicts for his clients. For more information, contact our office.   

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