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Counsel That You Can Trust & Depend On


Guy DiMartino Oct. 19, 2021

There are two primary difficult aspects: firstly the age of the resident, because of the bias that they are old anyway, and secondly people generally have a number of medical problems as they get older, so the question becomes whether the issue was caused by the abuse and neglect or was it caused by their other ancillary medical problems – diabetes, heart disease, orthopedic injuries and the fact they could not move, the fact they were overweight, or even their dementia. These are the two main obstacles or issues faced, which is why the person needs an advocate who understands the medicine involved, otherwise they could just be wasting their time.

What Kind Of Damages Might The Loved One Be Entitled To In A Nursing Home Abuse Case?

The damages would really depend upon the injuries. There are standard damages for medical expenses, and in a nursing home situation there is usually Medicare or Medicaid involved, so there would be those issues. Somebody who was in a nursing home would not have a wage loss type of damage, although there would be the pain and suffering damages. There would be the loss of quality or enjoyment of life, the loss of comfort and the loss of affection, and in a case that involved a death, then there would be wrongful death damages which could be the loss of affection, the loss of love and things along those lines. There might be damages for future medical expenses in some situations. Somebody with a terrible bedsore may need ozone treatment or they would have to go to oxygen therapy or have multiple surgeries or might eventually need plastic surgery to cover up the wound, which would all be elements of damages, so there is a wide spectrum of potential medical treatments.

If the abuse or neglect is something that is very extreme, then they might be able to receive punitive damages which are meant to punish. In the state of Indiana, a majority of the punitive damage award actually goes to a state fund as opposed to going to the person or to their family. So, that is the whole gamut of damages that can be received.

Is It Harder If The Nursing Home Is Private or If It Is A Corporation?

A lot of them are private corporations, although some of them are very big corporations. There are national corporations that have hundreds or thousands of nursing homes in the United States, and they have a lot of layers of protection. They have groups of different corporate entities, so one entity will own the business, while another entity will be a management company, and the management company will be an offshore company so there are all these shell games that the nursing home industry plays.

What Are Some Of The Barriers Someone May Face When Getting A Lawsuit Going?

The barriers are that a lot of times, records will disappear or records will be changed. In Indiana, the barrier is that nursing homes are covered under the medical malpractice statute, which means there is an elaborate process the person would have to go through before they can even file their case in court. The first step in the claim would be to file a complaint with the Department of Insurance, and then go through an administrative process, which can take a couple of years to get through. Once they are through the administrative process, they would have to make a decision about whether they wanted to go into court. A lot of lawyers do not want to take these cases because they are long, arduous, possibly expensive and then there is the whole issue about the person being old anyway – which makes it easy for it to become a profits over people kind of situation if nobody's putting pressure on them.

What Sort Of Witnesses Are Utilized For Cases Like This?

The people who provided the care have information regarding the care and treatment of the nursing home resident. Expert witnesses, such as nurses and doctors, are needed in these types of case. Most of the time, we would need a witness like a nurse who could testify that either the nurses or the CNAs deviated from the applicable standard of care, they were negligent and committed a malpractice or abuse or neglect, whichever it is. Many times we also need a doctor as an expert witness to give a causation opinion, which is an essential element of the claim. The doctor would provide an opinion for instance that the nursing home resident developed the bedsore because of the deviation in practice and because the nurse did not turn and reposition the patient frequently enough. The doctor may also provide an opinion that because of the bedsore the resident developed an infection that went through their blood into their heart and caused them to get a heart attack, or something along those lines.

On the expert witness side, the person would usually need a nurse and a doctor, but if the problem with the resident's care was administrative within the nursing home, then we would need an expert witness like a nursing home administrator. This might also be the case if there was a staffing problem, and the number of residents was too much for the staff.

By and far, the most important witnesses in a nursing home claim is the resident's family, so a lot of times an attorney will not take the case when the family is not involved with the resident, because the potential is that the jury would hold it against the family that they were not active in their loved one's care at the facility.

For more information on Aspects Of Nursing Home Abuse, a free initial consultation is your best next step. Get the information and legal answers you're seeking by calling Guy DiMartino Law at (219) 690-8997 today.