When you sue a nursing home for damages and losses resulting from its negligence in your (or your loved ones) care, it won't make it easy for you to win. The defendant's attorney will use a number of tactics to either win the case or—at least—reduce the number of damages the company has to pay you. Here are two tactics you're likely to encounter and what you can do to prepare for them.
Blame the Patient's Condition
A tried and true defense that many nursing homes use is to blame the patients' condition for their injuries. Depending on the victim's age and health status, this defense can be very effective at deflecting blame away from the staff or other parties who may be responsible for harming the plaintiff.
For instance, in one case, a person was admitted to a nursing home after having a stroke. When the person was discharged, he had to have one of his legs amputated. The plaintiff sued, stating the patient had developed pressure wounds because of the staff's negligence. However, the company claimed the damage to the patient's leg was due to his peripheral vascular disease. The case was decided in the nursing home's favor.
Pushing back against this defense requires you to show that—more likely than not—the injury was caused by the staff's negligence and not the patient's condition. For instance, if the patient sprained his or her hand after falling, the company may claim the patient fell because of dizziness due to his or her condition. You would need to show that the person's condition doesn't cause dizziness and/or that the staff didn't do enough to prevent the fall (e.g. did not provide a mobility device).
Refuting this defense may require testimony from one or more medical professionals. Thus, discuss this option with your attorney who can typically locate expert witnesses who can help you with this aspect of the case.
Get Evidence Thrown Out
Another tactic the nursing home may use is to prevent evidence from being admitted. If you place a hidden camera in your loved one's room to record the staff's behavior, the nursing home may attempt to use the state's surveillance laws to prevent it from being used (use of hidden cameras is illegal in some areas).
This tactic can take many forms, from challenging the evidence directly to haranguing witnesses to get them to say something that contradicts the evidence and casts doubt on its veracity. The best way to counter it is to thoroughly prepare your witnesses and be absolutely honest with your attorney about how you obtained your evidence. He or she can look up the relevant laws and develop a strategy to ensure the evidence is accepted by the court.
For help litigating your nursing home neglect case or advice on the best way to handle these and other defenses that may come up, contact an attorney or law firm like Reed Law.