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My partner, Pete Mackey, recently posted a blog about how we evaluate cases to determine whether we can represent someone in lawsuit. Nursing home abuse cases are unique. Often the resident has died and family members are in our office trying to get an explanation. They went to the nursing home and were rebuffed. Why did dad die so soon? He was only to be in the nursing home a few weeks for rehabilitation. These family members cannot tell us what happened. We have to get the records to know.

My first opportunity to represent a nursing home resident as the result of nursing home abuse was in 1984. The resident died – no family member lived in Mobile. A volunteer who visited her in the nursing home came to me because she was concerned about what happened and the family wanted to know. At that time, there were few regulations governing the care given in nursing homes and a prevalent attitude of ‘she was going to die anyway’ existed. That attitude still prevails but we now are armed with stronger federal and state government regulations regarding the care to be given and people are more aware that the elderly should be protected.

There are some key factors to look for in determining whether there is a case to pursue for the injury, abuse or death of a nursing home resident. What was the resident’s condition when she went in? Did it worsen? How? Physical deterioration with pressure ulcers, dehydration, malnourishment, contractures, frequent falls, over sedation and infections are buzz words heard from the family or loved ones. Another concern is the emotional and psychiatric change in the resident- fear of nurses may be a tell-tale sign of nursing home abuse.

Nothing is simple in these cases. Nobody sees the injuries occur like they do in a car wreck or construction accident. How the injury occurred has to be gleaned from the medical records. Medical and nursing experts need to review those records to determine if there was a violation of the standard of care that caused the injury(ies) or death. Our office has a medical doctor and a nurse on staff who review records for us regularly and know the issues to look for to determine if the injury, abuse or death was caused by a violation of the standard of care.

Another consideration is whether there is an arbitration agreement that may keep the resident and/or family from pursuing a lawsuit in court. I wrote a blog on Injuryboard about the use of powers of attorneys with clauses prohibiting the attorney- in- fact from entering into arbitration agreements. If there is an arbitration agreement in the admissions contract, a determination has to be made whether it can be enforced and if so, whether the arbitration forum will provide a fair panel or arbitrator to hear the case.

In all states there are time limitations to bring a lawsuit. The sooner after an incident occurs that the records can be reviewed and witnesses contacted, the better it is for an attorney to make a decision whether a lawsuit is proper. Time is also necessary to give experts an adequate opportunity to assist the attorney with medical information.

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