Moving elderly loved ones into nursing homes is never easy. When senior relatives start needing around-the-clock care, though, relocating them is often best for everyone.
Not only will they receive comprehensive medical care, but you will also be able to spend more quality time with them. Instead of shuttling Dad to doctor’s appointments or running errands for Mom, you’ll actually get to sit and visit with them at the facility. And while you’re there, you can do something you both enjoy, like completing a puzzle, going on a nature walk, or watching classic Hollywood films.
There’s no doubt that nursing homes offer a number of benefits, and acknowledging them can make the transition easier on the whole family. What if it turns out Dad or Mom isn’t better off at the home, though? What if it’s become apparent that he or she is being neglected or abused by the staff?
Sadly, nursing home abuse is a very real problem around the country. It’s so prevalent, in fact, that facilities are taking a stand against the constant onslaught of accusations.
Long-term care facilities have served a critical role in the COVID-19 response by relieving pressure on overcrowded and understaffed hospitals. Unfortunately, while their contribution has certainly been appreciated, it has also given them the leverage they need to request immunity from litigation.
In recent months, California’s healthcare industry has been lobbying Governor Gavin Newsom to shield senior care facilities, hospitals, and doctors from civil lawsuits and criminal prosecutions. The proposed order mirrors those that other governors around the country have issued; however, it’s broader in some areas.
For example, while other states have merely extended immunity to healthcare workers, the order for California also requests protection for medical facilities, senior living providers, residential care homes, and all their employees. Thankfully, the order doesn’t actually bar victims of nursing home abuse from taking action. It does, however, institute a much higher standard of proof for winning a lawsuit against a protected party.
The Old Standard: Preponderance of Evidence
California’s current evidentiary standard for personal injury suits is a preponderance of evidence. This burden of proof is considered a lower standard than that of clear and convincing evidence.
In order to meet the preponderance of evidence standard, you must convince the court that there’s a greater than 50 percent chance that your claims are true. In other words, the evidence you present must be at least 51 percent in your favor.
Of course, judges and juries aren’t expected to perform complicated calculations to quantify the likelihood of the plaintiff’s claims. Instead, they must simply ask themselves, “Is the plaintiff’s story more likely to be true or false?”
That doesn’t mean, however, that meeting the preponderance of evidence standard is easy. You’ll still have to conduct a thorough investigation, after all, and obtain proof that your loved one was, indeed, neglected or abused by nursing home staff. Evidence that may help you demonstrate as much includes:
- The victim’s medical records;
- Photographs of any visible wounds the victim suffered;
- Statements from other residents, their visitors, or staff members;
- Nursing logs;
- The facility’s hiring practices and standard operating procedures; and
- Relevant surveillance footage.
The Potentially New Standard: Clear & Convincing Evidence
If California issues the proposed order, thereby shielding the healthcare industry from litigation, personal injury plaintiffs in certain cases will have to meet the clear and convincing evidentiary standard in order to win their suits. Evidence will only meet this standard if it indicates the plaintiff’s claims are far more likely—significantly greater than a 51 percent chance—to be true.
While not as demanding as the “beyond a reasonable doubt” evidentiary standard, the clear and convincing standard is undeniably harder to meet than the current preponderance standard. If the order is issued, plaintiffs might be able to meet the higher standard by gathering the same kinds of proof listed above; however, the defendant will likely challenge more of the evidence they present. As such, they must be prepared to bolster their claim with even more proof.
What Might the Ramifications Be If Nursing Homes Are Shielded from Lawsuits?
At the end of the day, fewer families will be able to take legal action if the proposed order is issued. If their loved one received substandard care from nursing home staff but they’re unable to present enough proof to meet the clear and convincing evidentiary standard, their case will go nowhere.
Considering the damages that result from nursing home neglect or abuse are often significant, such a roadblock would be utterly devastating. In addition to medical bills, moving expenses, and home care costs, for example, victims incur pain and suffering, mental anguish, and emotional distress.
While you can’t put a price on trauma—or go back in time and erase it—securing a payout that covers all such damages can help victims and their families immensely. A settlement or verdict can provide the funds needed to arrange for even better care at a different facility so the victim can live the rest of their days in peace.
A portion of the payout could also help the family regain their financial footing. They may have covered the victim’s emergency medical bills, for example, or home care expenses after moving him or her out of the facility.
Call (562) 206-1939 for a Free Consultation with a Long Beach Nursing Home Abuse Attorney
Your Injuries Are Personal to Me
If your elderly loved one was neglected or abused at a long-term care facility, turn to the Law Office of Michael D. Waks. Attorney Waks will use all the resources at his disposal to conduct a thorough investigation into your case so you can hold all responsible parties accountable.
With more than 30 years of experience in personal injury law, Michael D. Waks knows what it takes to secure satisfactory settlements and verdicts for his clients. Dial (562) 206-1939 or fill out our Contact Form to schedule a free consultation with a nursing home abuse lawyer in Long Beach.
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