Skip to navigation
Counsel That You Can Trust & Depend On


Guy DiMartino Oct. 19, 2021

When someone first meets with an attorney about a nursing home abuse situation, the attorney will talk to the person about the facts that they know to be true. He will ask if they had registered a complaint with the Department of Health and whether the state had come in and done an investigation. The attorney would ask the person to provide any information they had, documents that might have been signed when the loved one was admitted, any notes they might have taken from any conversations they had had, and then based on what the person said, they would decide if something needed to go further. They would also request some medical records so they could review them and if they felt there might be something else going on there, then they would probably send them out to a nurse or a doctor, depending upon the situation, and have them review the facts of the case and give their opinion.

If the attorney decided there was something there that they could pursue, then they would file a complaint or a proposed complaint with the Indiana Department of Insurance and begin that administrative process.

What Are Some Qualifications To Look For And Some Red Flags To Avoid When Choosing An Attorney?

Firstly, the person would want a lawyer who handles these cases. Nursing home claims are not like clear liability car accident cases. Instead, these claims have a number of issues involving the elderly including healthcare providers, chronic medical conditions, and some times memory and mental decline. For a nursing home case, the client wants a lawyer who may spent time defending these cases because they would have seen a lot of them and would know how the nursing homes work and how the healthcare system works, or they might want somebody who had actually been a healthcare provider because they would know the system and the medicine.

Why Do A Lot Of Attorneys Not Work With Nursing Home Abuse Cases?

Lawyers avoid these cases for a number of reasons. There are many issues regarding the age of the person, dealing with Medicare and Medicaid, factual scenarios which are difficult to sort out and the fact that it is a long process because they have to go through a two- tier process, first the administrative process and then the legal process. It's a lot easier to deal with a motorcycle case or an accident case where there is somebody with a broken bone because they are typically easier to handle. Nursing home claims can become very complicated when somebody has five or six severe medical problems and the attorney has to sift through hundreds of pages of medical records in order to understand what happened and what went on medically with the resident. Additionally, in these cases the lawyers are dealing with nurses and doctors and some lawyers are just uncomfortable with the process of taking a healthcare provider to task.

How Do Attorneys Get Paid If It Is Considered A Personal Injury Case?

These cases are usually taken on a contingency fee basis, and because they are covered under the Medical Malpractice Act, the contingency fee would be a little different than a standard contingency fee.

How Is It Different From A Normal Contingency Fee?

The contingency fees are quite complicated for medical malpractice cases or nursing home cases in Indiana, because the healthcare provider would only need insurance up to $250,000. The Indiana Patient Compensation Fund would pay the remainder of the resident's damages, up the statutory cap of $1.25 million. The law states that the person would only be allowed to receive 15 percent of the fee from the patient compensation fund. In practice, if the case went into the fund, the contingency fee agreement is that the attorneys who handle these cases and medical malpractice cases would receive 100 percent of their fee from the insurance proceeds, which do not exceed 33 percent of the entire amount.

In sum, it is a contingency fee contract but it is not a straight percentage because the fee will be adjusted based on the Medical Malpractice Act. This does not mean that the resident, patient, or family (the plaintiff), would have to pay attorney's fees out of their pocket. Attorney's fees are still contingent on recovery. No recovery, no fee.

For more information on Choosing The Right Attorney, a free initial consultation is your best next step. Get the information and legal answers you're seeking by calling (219) 690-8997 today.