Is There a Case?

If your loved one has suffered due to mistreatment by staff at a hospital, nursing home, assisted living center, or developmentally disabled group home, you may be considering whether or not you should file a lawsuit.

We get these inquiries often, and whether there may or may not be a case of abuse or neglect at a care facility depends on the facts of the situation and the applicable law. Whether I think a lawsuit makes sense usually depends on whether we can meet all of the required elements of a negligence or malpractice case:

1. The healthcare provider owes a duty to provide for the safety, health and proper care of the patient or resident. (“Standard of Care”)
2. The healthcare provider failed to provide for the safety, health or proper care of the resident. They did something they shouldn’t have done or failed to do something they should have done. (“Breach of the Standard of Care”)
3. The breach of the standard of care caused a significant injury or death. (“Causation”)
4. There is sufficient pain and suffering of the individual, loss of enjoyment of life and/or the emotional loss to a spouse, child, or parent as a result of the injury or death. (“Damages”)

If there is a weak link in any of the four elements, I probably won’t represent a family because it would be hard to justify our time and effort on such a case given the chance of failure. It may be an issue the family needs to resolve in some way other than litigation.

We handle our cases on a contingency basis (we are paid a percentage of the settlement or jury award) so you pay only if we reach a positive outcome in the case. We may invest anywhere from six months to several years in time and thousands of dollars for an investigation and in litigation expenses (such as paying for medical records, expert witness fees, depositions and trial costs) in a case. We also expect a commitment from our clients to be involved and assist us with information and testimony.

Because of this substantial investment we make and the risk we take, it must be financially worthwhile for my firm to take the case. Because of the time and energy needed to properly represent a family in these cases, there needs to be a good probability that if the case goes all the way to trial there is a good likelihood that we will win on liability (the defendant is responsible for the harm done) and to have a jury award sufficient damages (money compensation). Here are some examples:

1. Your mother entered a nursing home without any bedsores (pressure ulcers). The records show she developed a stage two pressure ulcer the size of a quarter on her buttocks. Over the course of a few weeks of proper care, her wound healed. I would not take this case. Even if the nursing home was negligent in allowing the wound to develop, the damages are not significant enough to warrant spending thousands of dollars and the investment of time into the case.

2. Your mother entered a nursing home without any pressure ulcers. However she developed a large and deep stage four pressure ulcer on her buttocks and the bone was visible. The wound became infected and she was rushed to the hospital for treatment. Unfortunately she was already in septic shock; antibiotics couldn’t reverse her situation and she died. This is a case I would accept. There is a good chance the defendant will be held liable, good evidence of causation and the potential damages are significant because the mother was in pain and suffered. In addition the death and resulting loss to the family can probably be related to the infected wound. A good settlement or verdict is probably likely and it would be worth both the time and cost to pursue this matter.

3. Your mother entered an assisted living facility due to moderate Alzheimer’s disease. She was a frequent walker. She roamed the hallways all day long with a cane. She had no history of falls and was not on any medication which might impair her balance. One day she tripped, fell and broke her collarbone. She was hospitalized for a week and then returned back to the assisted living facility. This is a case I would not take. It would be difficult to show what the facility did wrong and how they might have breached the standard of care. Damages are also not significant enough to spend thousands of dollars and gamble on a recovery.

4. Your mother had mild to moderate dementia and entered a nursing home facility after she had fallen at home and had back surgery. She was there for rehabilitation and was a known fall risk. Despite that, records from the facility and the information the family gives me supports the conclusion that there was not a proper care plan to prevent her from falling. There was a call alert bell within reach, but no one came when called; there was no bed alarm; the bed wasn’t lowered; and there were no safety mats on the floor. She was also using the diuretic Lasix and needed to use the bathroom frequently. When no one came to assist her, she got up to use the bathroom and fell, hitting her head. She was sent to the hospital and it was determined that she had a brain bleed called a subdural hematoma. She died two days later. This is a case I would likely take. There is strong evidence of liability and of causation. The damages are also significant.

Read more example cases here!

There are other issues that come into play when I review a case.

• How did your family get along, and are individuals worthy of compensation? If a family member was in a long-term care facility and their spouse and children never visited, if you were in the jury would you award them reasonable damages?
• Large liens such as Medicare and Medicaid (Medical Assistance) could be placed against the damages award, possibly making pursuing a case not worthwhile.

There are many facts and issues to consider when I decide whether or not to take a case. That decision can be made faster when families promptly provide us details of the events and the information we request.

Deciding whether or not to file a lawsuit is not something that should be taken lightly by a family or an attorney. You can make an informed decision about what you should do after talking to me. We can discuss what happened with your loved one, the facts about the situation, the applicable law and how it may be applied in your case.

Call the Law Offices of Roger Weinberg, LLC, at 410-825-3161 from anywhere in Maryland, or fill out this contact form. Our lawyers have been practicing in this area of law for decades. We know the rights of nursing home, assisted living facility and group home residents and the legal obligations of the facilities caring for them.

We can help get the justice and compensation that your loved one deserves. We understand that representing neglected and abused nursing home, assisted living facility and group home residents and their families is a heavy responsibility. Our clients hire us because they need someone they can trust after a nursing home, assisted living facility or group home violated the trust they put in them.