Nursing Home Abuse
A Brief Introduction On Yourself, The Practice And Your Experience Working With Individuals Who Are Pursuing Action Against Nursing Homes.
My name is Reuven Epstein, and I’ve been an attorney in New York for more than 30 years. My firm specializes in personal injury cases. Within the personal injury umbrella, which includes car accidents and slip and falls, I have been spending more time and energy on nursing home cases. There are two reasons why that’s been happening. One reason is that we’ve been getting more calls and questions about nursing home incidents. The other reason is that it’s something of a passion for me. Of course, we’re here to help anyone who’s been hurt in any way by someone else who caused them harm, whether it’s a car accident or a property owner who didn’t keep the property in sufficient condition. But, the nursing home scenario specifically is one that really gets my attention and focus. Unlike car accidents, where most drivers do not mean to cause an accident, nursing home incidents feel much worse and more egregious because family members and loved ones are involved. People in nursing homes are there to receive better care than if they were in their home or in a family member’s home. But instead, something bad happens. That’s just unacceptable to me.
The numbers across New York and the country are exponentially going up in the number of nursing home cases. That’s really why I’ve been focusing on these types of cases. There are more of these cases in general, but I feel very passionately about holding the nursing homes responsible that are not keeping the proper level of care.
Who Do You Want This Book To Be For? What Do You Want Readers To Get From These Pages?
Unlike other types of potential lawsuits, such as car accidents, that are often pretty straightforward in terms of knowing if you have a case, there seems to be more confusion about whether a case is actionable when something bad happens to a loved one in a nursing home. This is for whom this book is geared for. If something bad happens to a loved one in a nursing home, and what happened just doesn’t seem right, then this book is for you. This book is meant to help you figure out what happened, and what you can do about it.
When Someone Comes To You With A Potential Case Of Nursing Home Negligence Or Abuse, What Generally Are Some Of The Main Concerns They Have About Their Loved One Or Their Own Situation?
There are a number of potential cases that people have expressed concerns about. Some of them are clearer about there being a problem. But, whenever something happens that doesn’t seem right to a family member, it is worth checking into. For example, sometimes family members are concerned when a family member in a nursing home has a fracture. How did it happen? How did your relative end up with a broken hip? Is it because they fell, and there wasn’t adequate supervision? Or, did they fall from a bed that should have had railing or some kind of protection? That is something that needs to be looked into because while a hip fracture is not a day in the park for anybody, for someone who is in a nursing home, or in that age group, it is a life-changing event. Sometimes even a life-ending event. Over 36% of nursing home residents who had a hip fracture died within six months of that fracture. And well over 50% of people who have hip fractures in nursing homes become fully dependent after that occurrence within six months.
Again, for the majority of people who have a hip fracture in a nursing home, it really is life-altering. Moreover, if it happens due to someone’s negligence, or someone not providing appropriate care for your loved one, then there should be consequences. That’s what we like to help you figure out. A hip fracture is just one type of incident, but there are others. If your loved one has bedsores, that’s also very common. Bedsores don’t happen on their own. They are pressure ulcers that are caused by poor medical or nursing care. That’s a big problem because your loved one is supposed to be taken care of while in a nursing home. Furthermore, bedsores are extremely painful and costly to take care of. Therefore, if a loved one has a bedsore, that’s something that should be looked into, and it is almost always the result of improper routine care.
Another potential issue that can happen in a nursing home is a loved one not getting the nutrition that they need. This is within the category of “neglect”. If someone under the care of a nursing home is not getting enough food or water, that can lead to a cascade of medical problems. If they seem neglected in other ways, such as their personal hygiene is not good or if they seem to be getting a number of infections, that is often a sign of neglect. Sometimes, what looks like neglect could be a result of negligence, but sometimes it isn’t. Sometimes, it’s an underlying medical problem that should be looked into to try to figure out what the medical problem is.
Then, there are other categories. There could be sexual abuse. If the clothing of your loved one is disheveled, or if there are bruises on their body or lower part of their body, these are potential signs of sexual abuse. All of these are terrible and hard to categorize because you have entrusted your family member to a nursing home for proper care that was not provided. Additionally, if there was sexual assault, then that’s a criminal matter. The common threat for all of these is that they could be prevented, and there should be consequences as a result of the behavior.
As The Attorney, What Factors Do You Typically Look For To Know You Have A Viable Nursing Malpractice Or Abuse Case That Should Be Pursued?
There are a lot of factors that are looked at to determine if there is viable nursing malpractice or abuse case. For instance, the previous points mentioned are all red flags. A patient who should have a railing but doesn’t, and falls and breaks their hip, that’s a red flag. If a female patient has bruising all along the inside of her thighs, that is also a red flag. That doesn’t just happen. That’s the result of someone doing something awful to your relative. Most of these things are physical indications of a problem. But, there are also other things we look at. The law requires a certain level of care, which means that the staffing of the facility has to be at a certain level. If a nursing home is severely understaffed, then nursing home patients or residents could fall or incur some other problems or injuries. That goes hand-in-hand because if they were staffed properly to the level that’s required by law, then most, if not all, of these situations would not happen.
If Someone Suspects That They Or A Loved One Is A Victim Of Nursing Home Abuse Or Negligence, What Are The Ideal Steps That You Would Have Them Take To Build A Solid Case?
Like most cases, documentation is very important. It’s important to record what you’ve seen and when you’ve seen it. If it’s something like the bruising of the inner thighs, as uncomfortable as it might be, you should take some pictures because those types of things will heal and will not be available for evidence. It’s also important to document conversations with the staff about the concern. A lot of times, big problems arise from smaller issues. For example, if there is a bedsore problem, relatively early on, the nursing home has the ability to provide the care necessary to treat that matter and reverse it. If they don’t promptly treat it, it will get worse. A bedsore could get really bad and become extremely painful. It can also become much more complicated to treat, timely, and expensive.
How Do I Legally Represent My Loved One Who Can’t Represent Him Or Herself In A Case Like This?
A lot of times loved ones in nursing homes don’t have the ability to represent themselves. It really depends on the situation. Sometimes, it might be sufficient for you or another loved one to have a durable power of attorney and be appointed as the representative. That way, you’ll be able to start a lawsuit and hire an attorney. Sometimes that’s sufficient. But other times, if your loved one’s mental capacity is such that they can’t even hire you, then the power of attorney situation won’t be sufficient. So, you would have to be the guardian, and at that point, you’d be able to do whatever is necessary. It really depends on what the status of your loved one is at that point in time.
What Is The Statute Of Limitations In New York On Nursing Home Abuse Or Negligence Claims?
In New York, the statute of limitations is a little tricky in the nursing home area. For instance, unlike a regular automobile case or an injury case in general where the statute of limitations is three years, (unless it’s a special situation where a municipal entity is involved in which the statute of limitations is much shorter), in nursing home situations, there isn’t one set number. It isn’t three years per se. It depends on the underlying problem. If it’s a medical malpractice situation, then the statute of limitations is two and half years. If it’s a wrongful death, then it is two years. If it’s a general type of negligence, then it could be three years.
I strongly recommend making whatever inquiries needed as quickly as possible because it’s not always going to be clear which of the different time periods apply. You should work under the assumption that it’ll be a relatively short one, and try to find out whatever you need as quickly as possible.
Once The Abuse Has Been Reported, What Is The Next Step? Where Does The Lawsuit Or Claim Begin?
The process is somewhat similar to other types of lawsuits. Once a lawyer is retained, they don’t typically march into the court and start the lawsuit. It’s very important to try to gather information and evidence. It’s possibly even more important than in other cases to gather information and evidence. The nature of representing an older person in a nursing home, who has been compromised by whatever happened, makes the ability to consult with them more urgent because it’s something that you cannot do forever. It’s really important, early on, to try to find out everything you possibly can.
The investigative step is very critical and more critical than in most other cases. That’s when you find out what happened, the extent of the injury, the problem, and the staffing situation in the nursing home. That’s also when you try to get all the medical records to back up the case. Hopefully, the family has photos and other indications of treatment or the lack thereof. If you can put all of that together, then you’re well on your way towards making a case. Then, you can move forward. You don’t have to go all the way to trial. The best way to avoid a trial is to assume that you’re going to trial, gear up for a trial, and be as ready for trial as possible. Once you have everything lined up properly, then you will be in the best position to try to settle the case without going to trial.
In Addition To Filing A Claim Or Case Against The At-Fault Nursing Home, Should I And Can I Also File A Claim Against Individual Abusers?
The “could I” and “should I” are not always the same. You probably could file a claim individually, but whether you should will depend on the facts and circumstances. For instance, if it is a bedsore case, it might not be sensible to name one individual. You might have to name a whole slew of them because it’s usually more than one person who is involved with what happened. Perhaps if an individual was on duty who didn’t ensure that the rail was there, and a hip fracture resulted from the absence of the rail, then maybe you could just name that individual. However, the time when you definitely go after somebody in particular is when a sexual abuse matter occurred. Frankly, that’s a criminal matter as well. I would definitely involve the police in addition to whatever civil lawsuit is going on. The person who is preying on older people under their care should be held responsible for such a heinous crime. They should face the legal consequences from the criminal justice system as well as the civil lawsuit.
What Evidence Becomes Critical In These Cases?
Evidence, such as photos, are worth their weight in gold. If you have pictures that show black and blue inner thighs, that’s very strong evidence. That’s the type of evidence that’s hard to refute. If you have sent email messages to the facility giving them very specific instructions that were not followed, that’s something that’s helpful. Although not as strong, the notes and records that you’ve kept about your interactions with the facility and the staff, are also good to have. Notes are not as strong as photos or email messages because it’s something that could be prepared later on. It’s not contemporaneous with the problem, but if you have that, then that’s something you should hold on to.
Who Are Witnesses That Are Particularly Helpful To A Nursing Home Abuse Neglect Or Abuse Case?
Family members, friends, or the relative in the nursing home who’s aware of what’s going on, could be witnesses. They could be good witnesses, but they don’t always have all the information that you need. Sometimes, that information has to come from nursing home staff who are sometimes reluctant to provide that information. As a result, it’s a little tricky getting that if they’re still active employees. But, we can and will get that information from them because it’s needed, it’s the right thing to do, and the law requires them to provide that information.
Medical Records are also important because they can help document an ongoing problem. For example, if it’s bedsore that was non-existent at first that became relatively mild and then worse overtime, medical records will bear that information. It can also help in a number of these situations as well.
What Typically Are Damages A Victim Would Be Entitled To In A Nursing Home Negligence Or Abuse Case?
Before someone gets involved in a nursing home negligence or abuse case, they should know that it can be very time-consuming. However, you’re certainly well within your rights to pursue if it makes sense. From a financial perspective, unfortunately, it’s not something that lends itself to a quick answer unless you have all the information when you’re consulting an attorney. It’s almost impossible that you would know what the victim would be entitled to in damages.
Sometimes, you have cases that could be worth tens of thousands of dollars, $25,000, $50,000, or $100,000. Sometimes, you have cases that are worth a million dollars or more. It depends on the facts and circumstances. It depends on how bad the injury is to your loved one, how egregious the conduct was, and the degree of responsibility of the facility. All of these factors have to be factored in before figuring out what the number is. But, almost always, these cases have settlement amounts that are worthwhile to pursue. Not every one of them is going to be a million-dollar case, not by a long shot, but this is an area of law where juries understand what an outrage it is to have someone entrusted into a facility’s care while the level of care is not there. Therefore, I think that the settlement amounts are reasonable under the circumstances and are worth pursuing.
Are There Caps On Settlement Amounts In New York In These Cases? And If So, How Does That Impact How You Advise Your Client Throughout The Settlement Part Of The Case?
In New York, there aren’t caps in per se, not like in other states.
How Do You, As The Attorney, Determine When It Is In Your Client’s Best Interest To Advise Him Or Her That A Settlement Offer Should Be Accepted Or At Least Heavily Considered?
Determining when it is in the client’s best interest to accept or consider a settlement is an important issue in every injury case. All the more so for nursing home cases. It’s important for the attorney to be candid with the client, let them know what the value of the case is, and review the strong and weak points of the case. There are almost always some points that are not favorable, but it is vital to give a candid opinion about the value and recommend whether it is time to settle. All of this is the same for injury cases, but for nursing home cases, unlike an automobile case, the person bringing a lawsuit is generally not that thrilled with having a trial. It’s difficult. You are on the stand and testifying, and it’s something that can be incredibly emotional and difficult.
The nursing home cases are more personal in nature. Like many things, it is double-edged. On one hand, it can definitely make having a trial much more difficult for everyone involved. If you bring this type of case, you’re going to have to be in a trial and testify. Other family members will also have to testify. It’s going to be difficult. It’s going to be gut-wrenching. Therefore, if you can get a fair value without going through that, then that might well be the preferred way to go. Of course, because it’s so gut-wrenching and emotional, a jury might be more willing to give you a settlement that’s more in line with what you and the attorney think the value should be.
Again, it really depends on the circumstances. If you can get the value without going through the time and expense of a trial, then that is a homerun. But, if they’re offering you 50 cents on the dollar in terms of what the case is worth, then you need to have a lawyer who is willing to fight for you and take it all the way. And, in a situation like that, depending on your comfort level, then a trial might make sense.
What Is The Downside To Litigating When You’re Seeing Home Negligence Or Abuse Case?
The downside to litigating a nursing home case is very simple. If you litigate, don’t settle, and have a trial, nothing is guaranteed. You could lose a trial if you don’t have the proper evidence, if you can’t document what you need, and if you can’t convince a judge and jury what happened was negligence. You could lose or get a settlement that is nowhere near what you were anticipating. Within the last year or so, there was a case in the county where there was an offer for $500,000, but the plaintiff and family wanted $1 million. They were willing take $900,000, and so, they did not take the $500,000. The verdict came back at $75,000. Although they won the case, it’s hard to look at it as a win because they turned down $500,000. They ended up $425,000 less than if they would have accepted the initial offer. Again, all this is based on the facts and circumstances of a case, and all cases are different.
If A Case Does Go To Trial, What Generally Happens And What Could Be Some Potential Outcomes Along The Way?
A case could settle on the courthouse steps before it actually starts. It could start the day you reach a settlement or sometime along the way. I had a case once where I made an opening statement and the opposing counsel made his opening statement, and he then asked the judge for permission to talk to the insurance company. They came back with a little more money and we were able to settle the case before we went too deep into the trial. You can only reach a settlement at any point in time, but often, when you are already in the middle of the trial, that is when it will go all the way. And then, you really don’t know what the outcome will be. It could be favorable or unfavorable.
Why Is It So Important To You That Your Clients Receive The Best Representation When It Comes To Pursuing Compensation When Negligence Or Neglect Has Taken Place In A Nursing Home Facility?
I feel very passionate about helping victims of abuse in nursing homes because they are entitled to compensation. The facilities need to be made aware of the consequences for their lack of providing proper care and righting what they did wrong. But also, it is a means of making sure that they provide the type of care that they need to provide going forward. These are the reasons why I feel that it’s really important to get involved with these types of matters. From the client’s perspective, you need to have an attorney who is experienced, and who feels strongly and passionately about these types of issues.
What Factors Should I Be Looking For When Seeking The Counsel Of The Best Nursing Home Negligence Attorney?
When seeking the counsel of the best nursing home negligence attorney, it boils down to two factors. One is experience. There is no substitute for experience. We live in an unusual period of time where a kid fresh out of law school could do a lot of advertising, all kinds of advertising, spend a ton of money on internet advertising, come up first in searches, and know absolutely nothing about anything. New attorneys are dangerous. They don’t know how to proceed with this type of case or most type of cases for that matter. They need to get experience before they can really help clients, no matter how intelligent they are, and regardless of where they finished in their respective law school classes. Therefore, experience, is the number one factor that you should be looking for when considering an attorney.
The second factor and I’ve alluded to this before, is compassion. You want to combine experience and compassion. It’s important for an attorney to look at these situations and realize that this is not just someone who’s hurt. It’s not just a good case or something like that. It’s someone’s family member. It’s your family member. An attorney should be able to feel for the people involved, and use that compassion to fuel their ability to fight for the people who are hurt and to try to really get the best possible outcome for them.
When It Comes To Representing Clients In Nursing Home Negligence Cases, What Is Your Advice They Should Follow To Give Their Case The Best Chance For A Just And Fair Settlement Offer?
To give their case the best chance for a fair settlement, clients need to be involved from the beginning. When they see that something is going on in a nursing home that they don’t like, they need to be involved and ask questions. If they don’t like the care that’s being given, they need to actively intervene because a lot of times these facilities, especially when they’re understaff, the attention and care goes to the residents whose family are keeping a watch on things. That’s just the nature of how these things work. The care is going to be better if you are an advocate for your family member even before something goes wrong. But, when there is a problem, you have to get even more involved. And then, you have to document and bring in an attorney to advise you of your rights. These are all important things. An experienced attorney is important, but it’s not just the attorney, it’s also you. You need to be actively involved in the case and work with the attorney. Together as a team, you can bring about the best possible result from this unfortunate situation.
How Does Your Reputation And Experience Affect What Insurance Companies Might Offer As A Settlement In A Nursing Home Negligence Case?
Insurance companies, by nature, are in business to make money. They do that by paying out as little as possible for claims. So, how do they do that? They have a lot of ways to do that. We talked about that in the personal injury book, but for our purposes, one way that they try to pay out as little as possible is by their rating of attorneys. Some insurance companies have a whole formal rating system of attorneys. Others, it’s more informal. But, the way it works is that the insurance company and their attorneys try to determine if the lawyer who is bringing the case is someone who is likely to take it all the way to trial and bring back a big verdict. If the answer to that is no, then they will pay a lot less than if it’s someone who hit them hard at trial.
What Sets You And Your Firm Apart In Handling Nursing Home Cases For Your Clients?
I’m an attorney with a lot of experience. I’m an attorney that insurance companies know. They know that we fight hard for our clients, but I also feel that I have a lot of compassion. I appreciate what my clients have gone through. I understand the difficulty of having a loved one in that situation. I feel that it’s a good combination to have, and it’s what people should look for.
Are There Any Other Components To These Cases That We Didn’t Touch On That You’d Like To Include?
There is one thing that I want to touch on, and that is the situation with COVID-19. Our firm has received a number of questions regarding potential nursing home cases in the current environment of the COVID-19 pandemic. It’s been very difficult because a number of people have paid the ultimate price. They have lost their lives. At this time, over 40,000 people have died in nursing homes alone from COVID-19. And, the number one state in terms of the number of deaths has been New York. What has made it even more challenging is the fact that New York decided, in the middle of this pandemic, to send some 4,500 patients who had the coronavirus to New York nursing homes. As you might expect, that led to an already vulnerable nursing home population to become infected in very high numbers. Consequently, there has been very significant outbreaks in New York nursing homes.
This would seem to have all the elements for a very strong case for nursing home claims. Unfortunately, the law is currently preventing nursing home claims from going forward against nursing homes and the state. It’s very controversial. We’ll have to see what happens in the long-term. But, at this particular moment, it doesn’t look like nursing home claims involving the coronavirus will legally move forward.
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