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What to Expect when Bringing a Claim or Lawsuit Against a Nursing Home

by | Jun 23, 2020 | Firm News

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The first step in a nursing home case is for the resident’s lawyer to thoroughly investigate the facts of the case and the client’s injuries.  This is done by interviewing the injured resident, the resident’s family, and any other witnesses to the nursing home’s abuse and neglect.  Second, a lawyer will obtain and review the resident’s medical records from the home and from any other providers who treated the resident.  In reviewing the records, the goal is to: (1) identify specific violations the Illinois Nursing Home Care Act, (2) understand the full nature and extent of the resident’s injuries, and (3) determine whether the resident needs and future medical treatment to recover from those injuries.  A lawyer may also send the resident’s medical records to a paid nursing consultant to get a second opinion about the nursing home’s violations of the Illinois Nursing Home Care Act, and how the home could have better cared for the resident.

Common violations of the Illinois Nursing Home Care Act include:

  • Failing to provide the necessary care and services to maintain the highest practicable level of physical, mental, and psychological well-being

  • Failing to protect a resident from abuse or neglect

  • Failing to establish an adequate care plan

  • Failing to prevent the onset of bedsores and treat existing bedsores

  • Failing to prevent a resident from falling

  • Failing to provide adequate nutrition and hydration

  • Failing to prevent wandering and elopement

Once a clear picture emerges regarding a nursing home’s substandard care of a resident and the nature and extent of the resident’s injuries, the next step is for a lawyer to submit a demand letter to the nursing home.  The demand letter will specify how the nursing home provided inadequate care and will educate the home about the injuries sustained by the resident as a result of the inadequate care.  The demand letter will also demand a specific sum of money to settle the resident’s claim.  If a home accepts responsibility and wishes to pursue settlement, then the attorney and the home can enter settlement negotiations out of court.

If the nursing home refuses to accept responsibility, then the lawyer will file a lawsuit against the home on behalf of the injured resident.  If the resident is still alive and is competent to bring the suit personally, then the suit can be brought in the resident’s name.  If the resident is still alive but has an appointed guardian, then the suit will be brought by the guardian on behalf of the resident.

If the resident has passed away, the lawyer must determine who the proper plaintiff will be to represent the deceased resident’s estate.  If the resident had a will, then the plaintiff will be the executor of the resident’s estate.  If the resident did not have a will, then the lawyer will need to have a special administrator appointed by the court to represent the decedent’s estate.

Once a lawsuit is filed, the plaintiff must serve the defendant nursing home with a copy of the complaint and summons.  Once the home is served, it must hire an attorney to file an appearance on its behalf and file an answer admitting or denying the allegations of the complaint.  Once the home is served and an answer is filed, the parties will engage in discovery.

Discovery involves both written and oral discovery.  Commonly used written discovery tools are interrogatories and requests to produce documents.  Interrogatories issued by the plaintiff will ask the defendant nursing home to identify witnesses to the allegations of the complaint, and to identify key individuals employed by the defendant, such as the director of nursing and the home administrator.  They will also ask for information about the home’s insurance policy.  Interrogatories issued by the defendant will also ask for the identity of witnesses to the allegations of the plaintiff’s complaint such as the resident’s family members.  The interrogatories will also ask for information about the resident’s injuries and treatment.  Requests to produce documents will ask the opposing party to disclose documents that may be relevant to the case, such as pictures of the resident’s injuries and medical records and bills.  A plaintiff’s attorney will also ask the nursing home to produce its internal policies and procedures regarding patient care in order to determine whether the home violated any of its own internal rules.  A home’s violation of its own policies and procedures can be powerful evidence that a home abused and neglected the plaintiff.

After written discovery is complete, the parties will engage in oral discovery, in which each party to the lawsuit will depose the other party’s witnesses.  For the plaintiff, this usually involves deposing key employees of the home such as the administrator and director of nursing, as well as any nurses and staff members who were directly involved in caring for the resident.  A skilled plaintiff’s attorney will use depositions to develop a roadmap for cross-examining the witnesses at trial and will also seek to elicit admissions from the witnesses that the defendant nursing home violated the relevant standards of care.

The defendant nursing home will seek to depose the resident and any members of the resident’s family who have knowledge of the relevant injuries.

Once depositions of the lay witnesses are complete, the parties will disclose to the court whether they have retained any expert witnesses to offer opinions at trial.  Commonly, a plaintiff will retain a nursing consultant who is experienced with nursing home care to testify at trial about the ways in which the defendant nursing home provided substandard care to the resident.  A plaintiff may also retain an expert witness to testify about the nature and extent of the injuries suffered by the resident.  The defendant nursing home may also hire its own experts to rebut the plaintiff’s experts.

Throughout the litigation process, the parties may attempt settlement negotiations.  However, if settlement negotiations are unsuccessful, then the case will proceed to trial before a jury.