In most areas of the civil justice system-from medical malpractice and nursing home neglect to premise liability-the law is built to apportion liability and require redress for inappropriate conduct, not necessarily undesirable outcomes. The legal system sometimes gets a bad rap because some believe that lawyers take sad situations (i.e. a serious accident) as poof in and of itself of negligence. That is not the case.
Instead, in virtually all areas of the law (except in rare cases of strict liability), redress is built specifically on conduct (or lack of conduct) and not merely on the fact that someone was harmed. For example, a case would not even make it to a jury, let alone result in a verdict for the plaintiff, if the attorneys involved alleged nursing home abuse only on the fact that a resident suffered a certain injury while in the home. The harm itself is insufficient. In addition to that harm, to beat back defense motions to dismiss the case or receive summary judgment, is the need to show actual negligence on the part of the defendants which contributed to the harm. In other words, plaintiffs cannot recover merely because they were residents at the time they were injured. However, they can and should recover if the inappropriate conduct of their caregivers is what led to that nursing home neglect.
This is a very fundamental aspect of the law in nursing home abuse and all personal injury cases. However, it remains misunderstood by the general public. That is often because the form of the negligence is frequently more subtle than which most are familiar. It is one thing for a nursing home employee to physically strike a resident-that is obviously intentional misconduct. It is another for a facility to be aware of the fact that it did not have enough staff members on duty at a particular time leading to fewer check-ups on the resident, medication delays, or bed-ridden residents not being turned as often.
No one would likely dispute that liability should attach when an employee physically attacks a resident. Yet, some are not sure why there is liability when an employee does not specifically do anything wrong. But that misses the point that the facility as an entity (and those in charge of its overall operation) often should know that certain actions on their part can cause injury to residents. For example, our Illinois nursing home neglect lawyers are very familiar with the fact that there are very systematic ways by which nursing staff levels, for instances, can be computed to indicate how many hours of individual care each resident will receive. Experience also reveals with surprising accuracy the potential for problems to go unnoticed when that nursing care falls below a certain daily level. Therefore, when a resident suffers injury that might have been prevented had a staff member been near the individual at the time, the failure of the facility to have appropriate staff levels is a clear factor in the harm. Therefore, if a civil nursing home lawsuit is filed in that case, the attorneys would argue not just that the resident was hurt at the facility, but that those involved knew (or should have known) that specific action on their part might lead to the harm that actual arose.
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