Breaking Down a Nursing Home Abuse Claim

by | Aug 25, 2022 | Nursing Home Abuse And Neglect

The love of money is a root of all kinds of evil. This general proverb is usually true regarding the evil of nursing home abuse. Specifically, the issue is a hate of payroll costs. Over 90 percent of the long-term care facilities in Fayette County are severely understaffed.

When worksites are understaffed, remaining employees must usually perform multiple jobs. Most of us have been in that situation before, and we know what it feels like. There’s only so much stress people can take before they lash out. Stressed-out nursing home staffers often lash out at vulnerable residents. On a related note, understaffed environments usually mean high turnover and low employee morale. These things make the stress worse.

In criminal court, nursing home owners often blame staffers for assaults, and then walk away. This approach usually doesn’t work in civil court. A Lexington personal injury lawyer uses legal theories like negligent hiring and negligent supervision to hold owners legally responsible for these unspeakable acts.

Kinds of Abuse

In terms of civil cases, nursing home abuse is usually assault, battery, or intentional infliction of emotional distress. Essentially, assault is an imminent and credible threat of bodily injury. Battery is usually a harmful or offensive touch. IIED is outrageous or extreme conduct which is designed to cause, and does cause, severe distress. Examples of nursing home abuse include:

  • Physical Assault: For the most part, residents live in nursing homes because they’re in such poor physical condition they cannot take care of themselves. As a result, seemingly minor contact, like a shove or a push, could cause a serious injury.
  • Verbal Assault: Many nursing home residents are also emotionally frail. The threat or possibility of a physical assault does more damage than a physical assault. The same is true of verbal abuse like “No one loves you.”
  • Sexual Assault: Few things are more extreme or outrageous than forcing a resident to witness sex acts or watch pornography. Frequently, evildoers engage in such conduct specifically to trigger an adverse reaction in nursing home residents.

Nursing home abuse is always intentional, as in non-accidental. However, it’s almost never malicious. Indeed, malice isn’t an element of a nursing home abuse claim.

The burden of proof in a nursing home abuse claim is only a preponderance of the proof, or more likely than not. So, a little evidence goes a long way.

Signs of nursing home abuse include unusual injuries, unexpected personality changes, and abnormal behavior around certain nursing home employees. If you suspect your loved one has been abused, always take your concerns to the nursing home administrator. If the administrator refuses to properly investigate the claim and/or take proper corrective action, contact a Lexington personal injury lawyer.

Starting a Claim

If the nursing home refuses to voluntarily do the right thing, the first order of business is evaluating a claim and anticipating possible defenses in order to determine the settlement value

Basically, a settlement value is like a new car’s sticker price. This figure is a starting point for purchase negotiations or, in this case, settlement negotiations. The basic components of the car, along with a few other factors, determine the sticker price. Likewise, the legal components of a case, along with a few other factors, determine its settlement value.

We mentioned negligent hiring and negligent supervision above. Basically, negligent hiring is hiring an incompetent person to do a job. That incompetence could be a criminal record, a lack of people skills, or pretty much anything else. Negligent supervision is usually a failure to properly act on complaints.

Effective defenses reduce the settlement value. Lack of evidence is often the most effective defense in nursing home abuse claims. The nursing home denies that abuse happened or denies that abuse caused the victim’s injuries. 

Possible affirmative defenses, which often don’t work well, include consent and self-defense. Basically, consent is a voluntary agreement to engage in a certain activity. Silence usually doesn’t equal consent in these cases. Self-defense is usually a proportionate response to an imminent threat. For example, if a nursing home resident lunges at an employee, that worker can forcibly hold the resident at bay.

Beyond the basic elements of a nursing home abuse case, a Lexington personal injury attorney must consider some other factors, such as the victim/plaintiff’s eagerness to settle quickly.

Resolving a Claim

As mentioned, most Fayette County civil claims settle out of court. Frequently, claims settle during mediation. 

Basically, mediation is a court-supervised settlement negotiation session. A third-party mediation ensures that neither party simply goes through the motions or makes a bad faith offer, like a take-it-or-leave-it proposal. Largely because of this court supervision element, mediation is about 90 percent effective.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We routinely handle matters in Fayette County and nearby jurisdictions.