Posted: February 4, 2017 | Last Updated: April 29, 2017
When a nursing home harms a resident through carelessness—which can include falls, pressure wounds / bedsores, neglect, malnutrition, dehydration, abuse or neglect, among other things—it can be held accountable through a civil lawsuit. You should have a nursing home lawyer investigate and help you file a lawsuit if one is warranted.
In Ohio, you only have a limited amount of time in which to file a lawsuit for medical claims, which time period is called the “statute of limitations.” A nursing home abuse lawyer should help evaluate that time period—do not delay in at least getting that information. Even when we reject cases, we try to help evaluate this time so you know where you stand.
Nursing home cases are different. They pose unique challenges lawyers who do not handle them regularly–and even some who do–never recognize or address.
Nursing homes are uniquely positioned to limit or even defeat inexperienced lawyers. They tend to have significant funds for defense–especially if they are part of a national chain–and their lawyers tend to be very experienced with nursing home litigation because they see so many claims. All of the pleasant, welcoming, family-oriented personal care marketing nursing homes engage in goes ut the window when risk management and legal defense is involved.
Nursing home lawsuits also present challenges to general personal injury attorneys because of the scale of the litigation. If you’ve spent any time with a loved one in a nursing home, you know how many different caregivers you see. turnover tends to be high. So there are a lot of potential witnesses to depose, which takes a lot of time and money for the lawyer. And it might require tracking people down. For lawyers who are used to a two-party auto crash case, this is a lot of work and effort. I’ve seen lawyers who are not focused on nursing home cases have no idea what it takes to litigate these cases.
Maybe. We only take select cases that fit our strengths: significant injuries or death caused by neglect or abuse. We take cases we believe we would take to trial, so that when we tell the defense lawyer or insurance adjustor “we’ll see you at trial,” they know we mean it. Not every case is like that. Many aren’t.
We also only take cases we believe are clearly meritorious. A resident can have a bad outcome without negligence. And even when a nursing home was negligent, that might have been limited or temporary, and did not cause the downturn or death that the family believes it did. That does not mean the family did anything wrong by calling us. Usually they want answers. And that’s what we try to provide.
I can promise you if we review your case, we’ll be candid and honest about the investigation. Even if it means we do not think there is a viable case. We’ll tell you that, and why. In my experience, that’s exactly what people want: honest answers.
If we believe there is a case, but it is not one we would be able to handle, we try when possible to refer you to a competent attorney who may take it on.
Often people contact us because they want answers: what happened? Was it someone’s fault? Many people would likely never call us if the nursing home was more direct and honest answering these questions. One primary reason to contact us is to answer those questions.
At the end of the day, what I can do is, at best, get compensation—money—for my clients. That’s how our civil justice system works. We don’t have duals, or burn the building down in revenge. We have lawsuits and trials over money. So what is the point?
One main reason is to change nursing home behavior. Nursing homes are businesses. They speak the language of money. If they can be careless and unsafe with residents, with the very people who need the most care, and get away with it, they’ll keep doing it. If, on the other hand, the community holds them accountable, and makes them pay full compensation for the harm that results, they’ll change their behavior.
Another reason is that the compensation that is paid can do good for the community and family directly related to the person injured or killed by negligence. Money can be used for nonprofits or public service groups that support resident safety, nursing training, or issues related to their memory, like veterans, pet lovers, or the like. It can also act as a way to keep the person in mind, such as education funds for a grandchild who may not have had the time with their grandparent they should have had due to negligence.
We can also insist on change at a facility in return for a lower settlement amount. Many nursing homes are not prepared for this type of negotiation, but some consider it and make changes.
While not a traditional part of an injury lawyer’s “job,” discussing these possibilities with a family has been very beneficial. If there is a recovery, they feel empowered in using it for good.
This is a question that has two answers. If we take on your case, it will not “cost” you any money, because we advance the costs of litigation. But the lawsuits can cost tens of thousands of dollars, especially if it goes to trial. And all of those expenses do get paid back if there is a recovery.
So even though you pay nothing out of pocket, and do not get a bill if there is no recovery, it does “cost” you out of the recovery. That is why managing expenses is an important part of these cases. You want an attorney who is willing to spend money in order to increase the value of the case—taking efficient and effective depositions, hiring strong experts—but also careful about not wasting money. That’s why we treat expenses as your money, and act accordingly. If I’m wasting money that will mean a significantly limited recovery to the clients, I’m not doing a good job for the clients.
There are also issues with how to evaluate case value. Some people–even some personal injury attorneys–think nursing home cases cannot have much value because they always involve older people, sick people, people who do not have much life left, don’t earn money, and are going to die eventually anyway.
I believe the older we get, the more help and assistance we need, the more vulnerable we are, the greater the level of care our caregivers need to provide. And the less time we have left, the more valuable every moment becomes. How dare someone–or more likely, some corporation–be careless with someone’s safety, when the person is more delicate, or unable to protect themselves?
When we tried a case to a jury in 2016, a 74 year old woman’s death led to a $4.4 million dollar verdict. She had a number of illnesses–who doesn’t as they age?–and the nursing home’s position was that her medical conditions killed her, not the fact that they rolled her out of bed and broke her leg. The jury saw through that argument, and showed that our community values the life of older people.
A large part of the verdict was to punish the nursing home for disregarding her rights and safety, showing that our community expects better from those caring for the most vulnerable among us. It was a long fight, a long trial, and an expensive process. And these results won’t happen in every case. But it is clear that if you investigate and prosecute a nursing home case, and trust the community to value older peoples’ lives, you may get results that can help change and improve the industry.
For every type of civil claim there is a period of time in which you can file a lawsuit, called the “statute of limitations.” After that time is up, you’re generally out of luck and any claim filed after that date will be dismissed.
In general—although not always—nursing home injury claims are “medical claims,” meaning you only have one year in which to file the lawsuit from the date of injury.
Besides the injury claim—the claim the resident has (even if they’ve died) for their injuries, pain, and suffering—if negligence caused injuries that led to the resident’s death, their family has a claim for their loss, called a “wrongful death” claim. These claims must be filed within two years of the date of death.
There are exceptions, ways to extend the time limits, and other complicated factors that make each case’s statute of limitations potentially unique. The most important thing to do is have a qualified nursing home abuse lawyer evaluate the statute of limitations as early as possible, to be sure you do not miss (or have not already missed) the cutoff date. You can still decide not to file a lawsuit, but at least you will have the option.
The statute of limitations only requires you to file a lawsuit. After that, there is no time limit by law for the time to complete the case.
Anyone with a claim against a nursing home can settle their claim—before, during, even after a lawsuit (such as after a jury verdict)—if the nursing home or their insurance company offers a reasonable amount to compensate them for their harms and losses. Most cases settle.
Having said that, whether you receive full and fair compensation will depend on whether the nursing home lawyers and insurance company believes they are at risk of a jury verdict. That can depend on the facts of the case but, just as importantly, whether they believe your lawyer is prepared and willing to take them to trial.
You want to have an attorney eager to go to trial. Most are not. Not even close.
We try cases, we like trying cases, but more importantly we like to help empower clients to feel confident and comfortable exercising their constitutional right to a jury trial. When you and your lawyer are prepared and ready for trial, you’re in the driver’s seat and in control.
Settlement does offer benefits: by eliminating risk of a jury trial, you know exactly what will happen. You can also save time, energy, and money, meaning a dollar in settlement is often worth more than a dollar at trial. Although we cover case expenses for nursing home cases, the expenses are repaid out of a recovery. So if I can get clients significant, fair compensation early on in a case, before spending tens of thousands of dollars on experts, depositions, exhibits, and the rest, that might be a better outcome than trial.
Lawyers are obligated to work in your interest. If a lawyer is afraid of trial, or does not want to invest the time, energy, and money getting the case ready, they may be tempted to encourage settlement at an unreasonably low level. I’m afraid that happens a lot more than it should.
In addition to a lawsuit—or instead of one—you can file a complaint to the State about suspected nursing home abuse or neglect. This is not the same as filing a lawsuit. It can result in an investigation and (hopefully) positive change. But it will not result in direct compensation to a resident or their family for injury or death. And that means the nursing home not having the financial incentive to change.
Some people who care for nursing home residents or have a legal duty must report suspected abuse by law, including doctors, nurses, lawyers, physical therapists, social workers, and law enforcement.
To file a complaint with the Ohio Department of Health, you can fill out their online form:
You can leave your name out to remain anonymous. The downside of this is that the Ohio Department of Health will not be able to contact you for follow up questions. The Ohio Department of Health has a Guide to Filing a Complaint you can review. If you prefer, they also allow you to call or a COMPLAINT HOTLINE number at 1-800-342-0553, which is available from 8:00am to 5:00 pm. At other times, you can leave a message. The information they ask you to have for a complaint includes:
If you hire a lawyer and file a lawsuit based on abuse, Ohio law says you cannot use the reports generated from these investigation as evidence (which is called being “inadmissible” as evidence). Even so, such reports can contain valuable information to help in the lawyer’s investigation. We always pull complaint investigation reports for a facility for the prior few years to see the types of issues they’ve had.
What type of things happen as a result of the investigation depends on the severity of the complaint, circumstances of any abuse and/or neglect, and any planned correction by the nursing facility. The facility director or administrator is usually alerted as to complaints. I recommend if you have significant ongoing concerns about abuse or neglect, or whether a loved-one’s medical needs are being met, that you arrange to have the resident seen by a doctor or hospital not affiliated with the nursing home.
If you would like to discuss your loved one’s situation, injuries, or death at a nursing home, call us at 216-777-8856, or fill out the contact form on this page (or here). Inquiries are confidential, cost nothing, and we will take the time to answer your questions.
The first thing to do is complete the contact form at the bottom of this page. That way, you can put in details that we can review before we schedule a phone call.
You can also call us at 216-777-8856 if you prefer.
You will likely not speak to us immediately, but will schedule a phone or in-person meeting. Why? Because we’re busy working on the important cases other families have entrusted to us. Just like we would not constantly take phone calls when we’re entrusted to work on your case.
You should also gather all the records and papers you have from the medical providers, go back and look for dates, names, and events that happened, and otherwise prepare to discuss the case. We’ll have a meeting and, if it seems like a case we’d be a good fit for, we’ll move into an investigation phase.
Once we’ve investigated, we’ll candidly tell you what we think about what happened, whether the medical provider is to blame, and what we think about the strength of the case.
Fair warning: we only take on clients whose cases we believe have very strong merits. We’re not lazy—the cases are still very complex, difficult, and expensive—but the risk to your family of being drawn into a difficult process with little chance of a positive outcome is not something we do.
Which means when we do take on a case, our reputation tells the other side this is a serious case we believe in.
If for whatever reason we do not take on the case, and we think there is some merit to the case, we’ll try and help you find a lawyer who might take it on.