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nursing home abuse and neglect attorneys

Two partners talk about going from student to teacher

This piece was originally published in the Chicago Daily Law Bulletin on August 1, 2019.

By Margaret Battersby Black and Michael F. Bonamarte IV

nursing home abuse

Nursing Homes Often Use These Common Defenses When Accused of Abuse and Neglect

The nursing home abuse and neglect attorneys at Levin & Perconti have nearly three decades of experience in defending residents who have had their rights violated and become injured while under the care of others. Through our work we have been able to identify the many common ways nursing homes will attempt to defend themselves even when guilty of obvious wrongdoings which created harm to an already vulnerable individual. These injuries can range from physical and sexual abuse to careless neglect stemmed from medication mismanagement, poor hygiene, haphazard slips and falls, untreated bedsores, malnourishment and dehydration. These injuries can quickly become deadly when not discovered soon enough and are typically created by nursing home operators who make greedy choices that put patients at risk. Some of those common actions include:

  • Reducing or underreporting staffing levels

nursing home abuse webinar

Levin & Perconti Partners to Present Strafford Live Webinar on Deposing Nursing Home Employees and Owners in Neglect and Abuse Cases

Founder and Senior Partner of Levin & Perconti, Steve Levin, partner Mike Bonamarte and firm associate, Daisy Ayllon, have all been invited to present the upcoming Strafford live webinar, “Deposing Nursing Home Employees and Owners in Neglect and Abuse Cases,” scheduled for Tuesday, April 9, 1:00pm-2:30pm EDT, 12:00pm-1:30pm CST. Strafford provides attorneys with the information and training they need to advance their career and remain at the top of their fields.

Webinar participants will be taught the specific techniques behind building successful depositions. Levin & Perconti panelists will discuss best practices for:

Earlier this year we reported on the pending United States Supreme Court decision in a case known as Mutual Pharmaceutical Co. v. Bartlett. The legal matter may have an impact on seniors, because it deals with liability following serious harm caused by medications. Considering that important role that medications play in the lives of many seniors with different ailments, any ruling which impacts one’s ability to recover following adverse reactions to a dangerous drug may affect the legal rights of the elderly community, including manby Illinois nursing home residents.

The Generic Drug Case

This week the Supreme Court finally handed down its ruling in the Mutual Pharmaceutical case (full opinion here). Technically the case hinged on whether federal law prohibited certain state common law rulings in regard to strict liability for harm caused by design defects in generic drugs. That is a bit of a mouthful. Put another way, the decision affects whether a patient who has an adverse reaction to the drug can sue the manufacturer if the drug is a generic version, instead of the name brand version.

As with any profession, experience in certain legal cases ultimately breeds the best results. That is why all those who may work on nursing home neglect cases in the future should take advantage of the opportunity to learn the ins and out of these matter from those who have worked on these cases for decades. Fortunately, attorneys have just that opportunity thanks to a new seminar being organized by the American Association for Justice (AAJ). The meeting is entitled “Litigating Nursing Home Cases Seminar: From Case Selection to Trial,” and is being presented in conjunction with the AAJ’s Nursing Home Litigation Group. It is open to AAJ Plaintiff Members and AAJ Paralegal Affiliates.

As the name implies, the seminar will cover everything from the intake process to identify the cases with the best chance of success all the way to the ultimate trial. Considering its wide-ranging scope and the critical importance (and prevalence) of these cases, this seminar is something that many local attorneys and firms should consider.

Promotional materials for the event explain that “Program highlights include sessions on building a corporate case by following the money trail, proving understaffing at the nursing home, and selection and use of experts.”

One of the founding partners at our firm, Attorney Steve Levin, will be presenting next month at an “Advanced Evidentiary Issues At Trial” seminar. More information on the event can be found at the Illinois Institute for Continuing Legal Education (IICLE) website. The event will take place on January 25, 2013 at the UBS Tower & Conference Center. It will last all day.

The event will cover a range of topics. However, Steve will present on particularly complex issues in wrongful case cases, including application of the Illinois “Dead Man’s Act.” The Act is a tricky issue in many cases, and when not understood properly, it may prevent plaintiffs from obtaining full recovery following accidents where an important individual in the incident has died.

Dead Man’s Act in Illinois

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.

Carlton at the Lake, Inc. v. Barber, Nos. 1-09-0039 (5-20-10) found that long-term care facility filed suit for balance due for services to husband during his two-year residence at facility, and claim against wife under Illinois Rights of Married Persons Act, and quantum meruit claim against both. Breach of contract claim properly dismissed, as contract for residency was not signed by husband or by his daughter who admitted him to facility, or by facility representative, thus contract unenforceable. Claim under Married Persons Act properly dismissed as claims against wife are dependent and reliant on husband’s underlying liability, which is unenforceable as contract not signed. Facility can state claim for quatum meruit, and its burden upon remand is to demonstrate services it provided and reasonable amount of fees sought. This Illinois Appellate Case will impact nursing home law.

Carter v. SSC Odin Operating Company, No. 106511 (4-15-10) found that the public policy underlying antiwaiver provisions of Nursing Home Care Act are not “grounds as exist at law or in equity for the revocation of any contract” within meaning of Section 2 of Federal Arbitration Act. Thus, public policy of Nursing Home Care Act is not a valid contract defense to FAA preemption. This Illinois Supreme Court case will have a negative impact on nursing home law.

Vincent v. Alden-Park Strathmoor, Inc., No. 2-09-0625 (4-7-10) found that common law punitive damages are not available in action by estate of deceased nursing home resident based on Survival Act for willful and wanton violations of Nursing Home Care Act. Neither statute nor equitable considerations warrant such remedy. This case will impact nursing home law damages.

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