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Are Nursing Home Neglect Lawsuits Frivolous?

For decades, certain policymakers and advocates for big business have made claims about the dangers of “frivolous lawsuits.” The argument is that private citizen file legal claims without merit simply in hopes of getting a jackpot settlement. These lawsuits allegedly force innocent companies to spend money defending claims. Advocates for tort reform frequently suggest that the civil justice system itself is flawed because they allow for these frivolous claims to be made.

Are these accusations true? If so, are Chicago nursing home neglect lawsuits part of the problem?

The answer to both questions is a resounding No.

Understanding the Myth of Frivolous Suits
As the Illinois Trial Lawyer’s Association (ITLA) has gone to great pains to make clear: the legal system has many built in safeguards to weed out claims that are not rooted in merit. Frivolous claims are not a problem for two general reason: (1) There are systematic procedural safeguards within the system to have poor claims tossed early in the process; (2) The structure of the relationship between injury plaintiffs and their clients are such that pursuing cases without merit is economically unsustainable.

(1) The rules of civil procedure allow defendants multiple opportunities to have a case throw out of court permanently. Contrary to popular belief, plaintiffs are not always guaranteed a right to present a case to a jury. As soon as a complaint is filed (the “pleading” that opens the matter), then defendants can ask a judge to throw out the claim for lack of merit. Even if the claim survives the first attacks, defendants then have several opportunities throughout the case to have it thrown out, even before reaching a judge or jury for trial.

(2) Beyond the procedural safeguards, anyone who understands the work of trial lawyers appreciates that it does not make sense to pursue cases without merit. These matters are almost always taken on a contingency fee basis. That means that the lawyer or law firm takes on 100% of the risk, putting up funds to move the case forward (often tens or hundreds of thousands of dollars) with no option for recovery if the matter is thrown out or lost at trial. In other words, if there is not sufficient evidence to win a case, an attorney will not pursue the matter only to lose his or her own funds. Any law firm that did operate in that manner would be out of business very quickly.

An experienced legal professional can explain if your nursing home neglect situation merits a lawsuit. Under Illinois law, these facilities have an obligation to provide reasonable care. There are very specific caregiving requirements, but, in general, a lawsuit has merit when a resident was harmed in a fall, developed bed sores, was attacked by another resident, or otherwise did not receive reasonable support from those charged to do so.

Pursuing these cases is not an attempt at a windfall. Instead, families come forward with these claims specifically because they want accountability and seek to raise awareness to prevent other families from suffering similar heartbreak

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Understanding the Ombudsman

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