If your loved one was abused or neglected while living at a long-term care facility, your family may have grounds for a tort claim. In order to prevail, you will have to prove three essential elements: liability, causation, and damages.
To prove liability, you must demonstrate how the defendant intentionally harmed or neglected your family member. Neglect is the breach of the duty of care. If nursing home staff deviated from the most widely accepted standards of care—even if the harm caused was not intentional—your family may be entitled to compensation.
You may also take legal action if the staff intentionally abused your loved one. Unlike cases brought on the basis of simple negligence, those involving intentional misconduct may warrant punitive awards in addition to the standard compensatory damages.
As for proving causation, you will have to demonstrate how the tort was directly responsible for the injury, illness, or death. Proving and then quantifying the resulting losses will satisfy the third element, which is damages.
Naturally, the strongest evidence to prove each of these elements will depend on the circumstances. If your loved one was neglected, for example, evidence of liability might include:
The facility’s standard operating procedures, training systems, and scheduling practices;
Deposition from other residents or their visitors detailing the facility’s consistent oversights; and
Photographs of any bedsores.
If, on the other hand, the victim was physically abused, valuable evidence might include:
Photographs of any visible wounds, bruises, or lacerations;
Eyewitness deposition; and
The facility’s hiring practices, especially those regarding background checks.
After demonstrating liability, you will have to prove causation. Important evidence may include medical records, diagnostic images, and perhaps expert witness deposition. Even if causation seems obvious, it is essential that you gather sufficient evidence linking the abuse or neglect that occurred and the damages that resulted, or you might face a dispute.
Disputes regarding causation are fairly common in nursing home abuse cases because the victims usually had preexisting conditions. As such, claimants need to demonstrate that the damages incurred were not caused by the preexisting condition but rather by the tort.
Once you gather enough evidence to prove causation, you can move on to proving damages. The losses your family is entitled to pursue will depend in part on whether the victim died as a result of the abuse or survived. Regardless of the kinds of damages that may be recoverable, valuable evidence will likely include bills, receipts, invoices, and deposition from relevant experts.
Call 855-585-2969 for a Free Consultation with a New York Nursing Home Abuse Attorney
If you want to take legal action against a long-term care facility for abusing or neglecting your loved one, turn to Leitner Varughese for guidance. Our personal injury attorneys are smart, tough, and experienced litigators.