1. What is the most surprising thing about the injuries lawyers see in nursing home liability cases?

2. My father fell and broke his hip - can I sue for money damages?

3. My elderly mother is diabetic, has high blood pressure and takes dozens of pills for various other ailments.  Recently, she developed a bed sore because she was left in soiled nightclothes too long. Will her pre-existing conditions offset any recovery?

4. Do most nursing homes have insurance to cover the cost of liability claims?

5. How would a jury decide on the amount of damages?

6. If I sue for damages, will my father be kicked out of the nursing home?

1. What is the most suprising thing about injuries that lawyers see in nursing home liability cases?

What is most surprising to me about nursing home injury cases is the length of time that a resident may suffer abuse before someone realizes that something is wrong.  This is not to say that family members are not concerned, but no one wants to believe that a nursing home staff person could be responsible for negligence or intentional injury to an older person.

Since some older people have a difficult time communicating, and because residents are often intimidated into not saying anything, there have been cases where a resident suffers through years of neglect or abuse.

Family members have probably not been through a nursing home experience before and do not know what to expect. Screaming and yelling at residents is not normal.  Physical punishment is not normal, physical restraints are not typical. The minute you suspect that your elderly loved one is not receiving proper care, you should begin your own investigation.

2. My father fell and broke his hip - can I sue for money damages?

Maybe. As an attorney, I have a responsility to you, the client, and to the court system in general, only to pursue negligence claims that are well grounded in fact. My law firm does not file suits that are groundless solely to generate a money recovery.

Before I will file suit, I will undertake an extensive investigation into the allegations of abuse, neglect and injury. I will first interview you and your elderly loved one. I will obtain and study your elderly relative’s medical records.  Next, I might interview other residents or family’s of residents to get a feel for what is going on at the nursing home. I will research the nursing home to see if other suits have been filed or complaints made. In many cases, I will retain the services of a private investigator to take pictures or conduct other interviews.

Once I am satisfied that the claimed injury is, in fact, the result of negligent or abusive behavior, and that the injury is significant enough to warrant legal action, I will file suit.

A broken hip may be the result of negligence, or it may be the result of bone density loss and old age. You are rightfully worried about what has happened to your father.  My job is to step back from the situation and made a decision whether I believe that the damage to your father will support a significant jury award.

3. My elderly mother is diabetic, has high blood pressure and takes dozens of pills for various other ailments.  Recently, she developed a bed sore because she was left in soiled nightclothes too long.  Will her pre-existing conditions offset any recovery?

Pre-existing conditions are always relevant, however, they are not always a major issue in a nursing home abuse case. Firstly, juries recognize instinctively that elderly people may have health problems.

Secondly, a defense lawyer’s over-reliance on a elderly plaintiff’s pre-existing condition may backfire and appear as if the defense is blaming the victim.

Thirdly, the law generally provides that “you take your victim as you find him.”  Once I have thought about what I want to prove in a case, I will research and sketch out what I expect and hope will be the jury instructions used by the judge.  In my view, jury instructions used in nursing home abuse cases often minimize the weight afforded pre-existing conditions.  Thus, my goal will be for the jury to focus on the damages and pain that actually happened, rather than pre-existing conditions.

4. Do most nursing homes have insurance to cover the cost of liability claims?

Most nursing homes do have insurance that will cover a damage award.  However, part of the insurance that nursing homes pay also covers the cost of defense attorneys who will aggressively and passionately defend the nursing homes.  Unlike plaintiffs (you, the injured party), defense attorneys are paid by the hour and can literally spend tens of thousands of dollars with investigators and consultants.

Since I handle most nursing home abuse cases on a contingency (no-fee-unless-you-win) basis, it can be very costly for me to investigate and prepare a nursing home liability case.  This is why our fee contract provides that I may associate one or more other lawyers to assist with trial preparation and to bear some of the preparation costs. I will, of course, consult with you before taking this step so that all of us are on the same page prior to engaging in the litigation process.

5. How would a jury decide on the amount of damages?

As you may or may not know, at the end of the presentation of evidence and testimony, the judge “instructs” the jury regarding the applicable laws of negligence and damages. Both myself as your lawyer and the nursing home’s defense counsel are permitted to suggest jury instructions to the judge. As noted above, I usually work on the jury instructions long before any trial begins. After all, you need to know where you want to end up before beginning a trial.

The jurors are often told to use their best judgment in assessing damages. If there are out of pocket costs, such as medical bills or rehabilitation costs, such damages are relatively easy to calculate. Beyond that, we have to rely on each juror’s idea of what is fair. My practice is usually to suggest a particular number and to explain why such a number is fair - perhaps to “reimburse” the resident for the months or years stolen from him - perhaps to pay for comfortable surroundings with live in care - perhaps to “send a message” to the nursing home. Each case is different.

Studies have show, and I agree with this assessment, that it benefits our case to create a starting point for a dollar award as early in the case as possible.

6. If I sue for damages, will my father be kicked out of the nursing home?

Under federal law, this type of retaliation is not permissible.  However, to be realistic, some nursing home administrators have been known to make life difficult for residents who are plaintiffs in litigation.

If you retain me and we pursue a negligence or other damages claim, I recommend that you maintain or increase your presence at the nursing home and that you continue to insist on proper care.

Georgia law provides that a “repair” or changes in policy or staff cannot be used as evidence that there was a problem in the first place. The goal is for defendants to make improvements without fear that their actions will be seen as admissions of liability.