Injuries in Maryland: Questions & Answers
Why file a lawsuit?
Why file a lawsuit? Long-term care facilities advertise that they have the skilled staff to take care of the elderly and physically and mentally impaired individuals. They charge large sums of money, and families naturally expect good care. When bad care leads to serious injuries or wrongful death, the negligent parties need to be held accountable to the families and state regulators. Only when the government pursues deficiencies against these facilities and victims and families pursue legal claims do policies change and better care occur. Victims and families want the facility to acknowledge care was not acceptable, and they want answers and accountability.
What needs to be proven, at a minimum? In any negligence or malpractice case, three key elements need to be proven. First, the care needs to be “negligent” or unreasonable, considering the standards of care in the industry. In essence, they did something they should not have done or didn’t do something they should have done. Second, that breach of the standard of care must have “caused” the injury, pain, suffering, disease or death. If both of those elements can be proven, then you can get to the issue of compensation or “damages.” Only cases with strong negligence, causation and serious injuries or death should be filed, given the amount of time and expense it takes to litigate a case.
How do you file a claim? Usually it is recommended that the victim or family hire a skilled and experienced attorney who has handled plenty of nursing home, assisted living, or group home cases. They should know what documents to obtain, how to interpret the records, hire the proper experts to support the claim, know the procedural formalities of filing the claim and be prepared to litigate the case through trial. Choosing an experienced attorney can maximize recovery through settlement or trial as well as reduce the anxiety of a lawsuit. Failure to properly handle the claim can result in a diminished recovery or no recovery at all.
What will it cost me? The Law Offices of Roger Weinberg will handle your case on a contingency or percentage basis, and you will not incur any fees or expenses unless there is a recovery. Sometimes, however, we may ask that the family obtain initial records before we begin reviewing the case and accept representation. Attorney fees and litigation costs are deducted from the final settlement or verdict.
Who can file a claim? Potential plaintiffs in a case are determined by whether the long-term care resident is still living or has died. If the resident is still alive, only the resident or his/her legal representative (power of attorney, guardian, etc.) can file a claim. If the resident has died due to the bad care that caused the injury, his or her estate can sue for the resident’s pain, suffering, funeral expenses and medical expenses. If the resident has died due to the bad care, parents, spouses and children can generally claim damages for wrongful death of their loved one, including emotional (non-economic damages) and economic losses. Unfortunately, many states have limits on the amounts that can be awarded for non-economic damages.
Related Article: Who Can Sue?
Who can be sued? The facility itself where care was contracted is always sued, but additional entities may also be held liable. Often a facility is part of a larger corporate ownership and control. When these corporate entities understaff a facility to increase profits, bad care can occur as a result of their decision to put profits over resident care. An experienced attorney will carefully consider the pros and cons of adding additional defendants and whether that helps with a resolution of the claim.
What is the value of my case? Many factors weigh into the value of your claim. No attorney can realistically tell you a value at the onset without a complete review of the medical and nursing records, the expert witness opinions, and possible defenses. You should enter the process with the attitude of looking for accountability. The attorney will seek to obtain a maximum recovery, since his or her fee is based on a percentage. Liens or insurance subrogation for repayment of medical expenses may reduce the recovery. Once the case develops, an experienced attorney should be able to determine the settlement value or range. If the case proceeds to trial, separate verdicts will be rendered for the plaintiffs, if negligence and causation are shown. Most cases will settle at a pre-trial mediation or from settlement negotiations, if all parties are reasonable in their demands. If so, a trial will not be necessary. However, if a trial is necessary, there is no guarantee of the outcome.
What can I do to assist my attorney? A detailed chronology of events, including dates, times, witnesses, staff present, action taken, photographs, etc., is very important to the case review and intake by the attorney. Often, the medical and nursing records are either inaccurate or fail to mention the bad event or care. So, other items are helpful in assisting the attorney in developing the “full picture.” Additionally, notes on how the injury or your loss has affected you are helpful in determining value.
What if an Arbitration Agreement was signed? Many nursing home and assisted living contracts contain a clause or separate agreement that prevents the filing of a lawsuit if allegations of bad care occur. These agreements should never be signed. However, Roger Weinberg has been successful in obtaining recoveries despite those agreements. Often the terms are held to be unenforceable.