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Negligent Security Seminar | March 2015

Florida personal injury lawyers

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    Common Challenges in Proving Nursing Home Abuse or Neglect

    As people grow older and lose the ability to care for themselves, nursing homes offer a place where they can live safely and receive assistance with daily activities. Sadly, however, many nursing home residents do not get the level of care and compassion they deserve, often resulting in injuries, exacerbation of preexisting medical conditions, or even death. Some of the most common cases include victims of:

    • Falls
    • Pressure ulcers (“bedsores”)
    • Malnutrition
    • Over-medicating/under-medicating
    • Elopements (patients wandering off)

    Under staffing of nursing homes is the most common cause of all of these. The National Center on Elder Abuse estimates that one in 20 nursing home residents has been the victim of abuse or neglect—and this number may be much higher since many cases are unknown or unreported. 

    For family members who suspect that their loved one may have been the victim of nursing home abuse or neglect, there are several signs to look for, including bedsores, unexplained injuries, unusual weight loss, and symptoms of overmedication. Caretakers at the facility may also exhibit suspicious behavior, such as refusing to allow relatives to visit with the resident alone. While these signs of abuse or neglect may seem obvious, proving them in a lawsuit can be a challenging feat. 

    In order to succeed in an elder abuse case against a nursing home, the plaintiff must establish that the facility had a duty of care to the resident, that this duty was breached, and that the resident suffered injuries or other damages that would not have occurred but for the abuse or neglect. In attempting to prove their case, plaintiffs may encounter the following common challenges:

    • Difficulty in proving that the victim’s injuries were caused by abuse, rather than the victim’s age or other health conditions. Elderly people tend to have a variety of preexisting medical conditions, and are generally more fragile than younger adults—they bruise more easily, their bones are more brittle, and they are prone to falling due to poor coordination or eyesight. Therefore, when a nursing home resident sustains an unexplained injury, the defendant facility will typically claim that it was inevitable due to their physical condition rather than any abuse or neglect. 
    • The victim has reduced mental capacity, is unable to articulate what happened, or has passed away. In many elder abuse cases, the victim is unable to testify about the abuse they may have suffered—and even when they are still mentally sharp and articulate, the nursing home may claim that the victim is unreliable due to the confusion that tends to come with old age. 
    • There is simply a lack of evidence. Even for families who visit their loved ones frequently, it’s impossible to know what happens at all times in a nursing home. These facilities are often understaffed with a high rate of employee turnover, so, unfortunately, there may be no witnesses—or the witnesses are difficult to track down—when abuse occurs.  

    While it can be difficult to prove that a nursing home resident was the victim of abuse or neglect, an experienced attorney can help you navigate the challenges and build a strong case against the facility. At Leighton Panoff Law, our team has extensive experience in various types of personal injury cases, and we have secured several significant verdicts against nursing homes that allowed their residents to be injured by abusive or neglectful employees. If you believe that your loved one has been a victim, call us today at 888.988.1774 to schedule a consultation. 

    What are common signs of nursing home abuse or neglect?

    Common warning signs of nursing home abuse or neglect include pressure ulcers (bedsores), unexplained bruises or injuries, sudden weight loss, and signs of overmedication or under-medication. Family members should also watch for behavioral red flags from staff, such as refusing to let visitors be alone with the resident. While these symptoms may seem obvious, they can be difficult to prove legally—especially when nursing homes blame the victim’s age or preexisting health conditions for the harm.

    Why is proving nursing home abuse so difficult?

    Proving nursing home abuse or neglect is challenging due to several factors. Elderly residents often have preexisting conditions, making it easy for facilities to argue that injuries were due to frailty rather than mistreatment. Additionally, many victims have reduced mental capacity, are unable to communicate, or may have passed away. This makes firsthand accounts rare, and without clear evidence or witnesses, building a solid legal case requires extensive investigation and expertise.

    Can preexisting health issues affect a nursing home abuse claim?

    Yes, nursing homes often use a resident’s preexisting health issues as a defense in abuse or neglect cases. Older adults are more fragile, bruise more easily, and have a higher risk of falls or injuries, making it difficult to distinguish between natural decline and harm caused by substandard care. Skilled attorneys must counter these arguments with strong medical evidence and expert testimony to demonstrate that the injuries were not simply the result of aging.

    What role does mental capacity play in elder abuse cases?

    Mental capacity plays a crucial role in elder abuse litigation. Many victims of nursing home abuse suffer from cognitive impairments or conditions like dementia, which can prevent them from accurately describing or even recalling what happened. Even residents who are mentally sharp may be portrayed by nursing homes as confused or unreliable. This makes the involvement of an experienced legal team critical to finding other sources of evidence to support the claim.

    What if there is no witness to the abuse?

    It is unfortunately common for there to be no eyewitnesses in nursing home abuse or neglect cases. High employee turnover and chronic understaffing in facilities often mean that no one is available—or willing—to testify. Families cannot be present around the clock to monitor care. In such situations, attorneys may rely on medical records, photographs of injuries, expert analysis, and circumstantial evidence to build a compelling case for abuse or neglect.

    How do you prove that a nursing home was negligent?

    To prove nursing home negligence, a plaintiff must show that the facility had a duty of care, that the duty was breached, and that the resident was harmed as a result. This requires evidence demonstrating that the injuries would not have occurred but for the facility’s negligence or abuse. Evidence might include medical records, witness statements, expert testimony, and documentation of facility practices like understaffing. A thorough legal investigation is essential for success.

    Why should I contact Leighton Panoff Law for a nursing home abuse case?

    Leighton Panoff Law brings years of experience and proven success in holding nursing homes accountable for abuse and neglect. Their legal team has secured significant verdicts in complex elder abuse cases and understands the unique challenges involved, from proving causation to overcoming the defense’s use of age-related health issues. If your loved one has been harmed in a nursing home, call Leighton Panoff Law at 888.988.1774 for a consultation and strong legal representation.

    Article by:

    John Leighton

    A nationally-recognized trial lawyer who handles catastrophic injury and death cases. He manages Leighton Law, P.A. trial lawyers, with offices in Miami and Orlando, Florida. He is President of The National Crime Victim Bar Association, author of the 2-volume textbook,Litigating Premises Security Cases, and past Chairman of the Association of Trial Lawyers of America’s Motor Vehicle, Highway & Premises Liability Section. Having won some of the largest verdicts in Florida history, Mr. Leighton is listed inThe Best Lawyers in America (14 years), “Top Lawyers” in the South Florida Legal Guide (15 years), Top 100 Florida SuperLawyer™ and Florida SuperLawyers (14 years), “Orlando Legal Elite” by Orlando Style magazine, and FloridaTrend magazine “Florida Legal Elite

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