Two of the nursing home neglect lawyers at our firm, Steven Levin and Jordan Powell, recently had an extended article published in the December issue of Trial magazine. The article (which can be downloaded in full here) is a guide for fellow attorneys regarding some of the complexities in dealing with depostions in cases where allegations are made of nursing home safety violations and harm to residents. With decades of combined experience on the subject, Attorneys Levin and Powell are able to share helpful information on key aspects of thesee cases, including how to discuss the matter with defense witnesses as well as how to beat back the most common defense tactics in these actions.
Nursing Home Neglect Case Commonalities
The article discusses how most legal cases alleging violation of safety rules follows a standard process-embodied by deviation from one of several requirements outlined in federal nursing home statutes. In general, these requirements can be broken down into five different areas: assessment, planning, implementation, re-evaluation, and communication. Taken together, nursing homes are required to plan for the unique care needs of the residents, properly execute that plan, change the plan if necessary, and always share information with the resident and their families. A breakdown in any one of these areas often leads to an accident or poor care which harms the resident.
In most case attorneys defending the nursing home are likely to raise one of several defense arguments that come up time and again. The article provides more in-depth analysis of each, but some include:
*Unavoidable: The most common defense argument is the claim that the five step mode mentioned above was followed and that the harm to the resident occurred anyway. This is where careful analysis and questioning comes into play. If the caregivers admit that any part of the model was not exectuted as well as possible, then the unavoidability argument no longer applies.
*Pre-existing conditions: One of the easiest ways a caregiver can deflecct blame is by suggesting that harm to a resident was caused by something that existed before they entered a nursing home. A resident’s physical weakness or inherent vulnerabilities, the defense may suggest, was a cause of the ultimate harm. However, this is an argumentative fallacy. While many resident’s have pre-existing weaknesses, those comorbidities are not underling causes of harm themselves–just risk factors. The facility is charged with taking those factors into account. If they did not do so or failed to implement their caregiving steps properly, then their negligence was still the cause of the underlying harm.
*Challenging the Standard of Care: Some caregivers seek to deflect their accountability by challenging what the proper standard of care is in any given situation. If they can define the standard as fitting their actions, then they can deflect liability. However, the standards outlined in federal statutes on the matter are pretty straightforward, and it is almost impossible for these caregivers to deny that the specific steps listed in those guidelines are appropriate when asked directly.
The legal professionals at our firm are proud to remain at the forefront of litigation involving nursing home neglect and abuse. If you or anyone you know has suffered harm as a result of inadequate nursing home care, please contact our team to see how we can help.
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