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Negligent Security Seminar | March 2015

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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 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. 

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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