Nursing home neglect claims require linking an elder abuse injury to a caregiver’s negligence.
That’s the short version
A lawyer’s task in proving up nursing home neglect is more involved because the law requires him or her to argue a valid prima facie case of negligence.
Elements of Nursing Home Negligence
Nursing home neglect is medical malpractice.
In tort theory, elder neglect claims must contain five elements to prevail:
- Duty of Care – recognition of a reasonable duty of care not to harm the elder.
- Breach of Duty – evidence of deviation from the recognized duty.
- Causation – linking the breach to foreseeable damages.
- Injury – proving the nursing home’s negligent acts actually harmed the elder.
Collecting Breach Of Duty Evidence in a Nursing Home Case
Gathering elder neglect evidence can be problematic.
The elder law attorney holds the burden of proof to show that the caregiver was negligent and their act caused an injury. On top of that, Attorneys must verify all evidence and support it with a strong testimony.
For this reason, injury lawyers retain a team of pre-trial investigators to collect relative witness statements, detailed reports and extensive photographs that clearly and objectively show the caregiver’s act (or omission) failed to protect the elder from harm.
Breach of duty evidence may reveal:
- Unexplained death
- Development of bed sores
- Heavy medication and sedation
- Occurrence of broken bones, bruises, or blemishes
- Sudden and unpredictable emotional behavior change or withdrawal
- Absence of personal hygiene
- Dehydration and/or malnourishment without cause
- Discouragement of the elder to speak for himself or herself
- Disallowance of residents to talk with others without caregiver presence
Discovering Causation in a Nursing Home Claim
Causation can be ambiguous in nursing neglect claims.
Sometimes, elder lawyers find it difficult to ascertain whether the caregivers caused the harm or whether the resident harmed himself.
For Example: It may be hard for Uncle Joe’s attorney to prove a facility’s poor floor maintenance caused Joe to fall and break his leg, if the elder possesses known movability issues that occasionally cause him to slip on his own.
Further, many seniors fail to report nursing home neglect due to fear of retaliation or because they’re embarrassed to admit what happened.
One approach to finding causation is to interview the elder about the incident and compare it to the caregiver’s account.
If the stories contain significant differences, it may be necessary to involve law enforcement or state protective services to assist in finding out what really took place.
Proving Damages in Nursing Home Claims
No harm arises when damages do not exist.
Assuming elder lawyers are successful in establishing the initial three elements of negligence, they must also find evidence that indicates the resident suffered a harm or a loss.
The courts need this criterion for measuring compensation and for awarding remedies to make the injured resident whole again.
Today’s elder laws mandate caregiver facilities to file incident reports on injuries that take place on their land. Here, both nursing home personnel and residents document their interpretation of what happened via signed affidavit.
Now, it may seem these injury reports would be the most effective means for establishing damages in a nursing home neglect case. However, locating an incident report where staff admits fault is unlikely.
Most caregiver testimony links the resident’s injury to a known pre-existing medical condition; the good news here is malpractice injuries offer paper trails to medical specialists who may have different opinions on the matter.
Hence, an attorney is better off securing a physician’s unbiased statement rather than depending on a caregiver’s injury report when working to prove damages.
Lawyers can also find damage evidence in:
- an elder’s journal
- recorded caregiver conversations
- written testimony from relatives on an elder’s physical or emotional condition