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How to Defend Yourself in a Nursing Home Abuse Lawsuit
You can be sued for nursing home abuse if you punch, kick, or hit a nursing home resident. You can also be sued if you are the owner of a nursing home who has not properly trained or supervised employees. When served with a lawsuit, you should contact a lawyer. Only a qualified attorney can properly advise you on how to defend yourself.
Responding to the Complaint
Read the complaint.The plaintiff will start the lawsuit by filing a complaint in court. This complaint describes who the parties are, what facts gave rise to the lawsuit, and the requested remedy (usually money damages). You will receive a copy of the complaint. You should read it closely to discover the alleged abuse:
- Direct abuse against a resident. You can be sued for assaulting, confining, physically punishing, or intimidating the patient. You can also be sued for depriving the resident of essential food, water, or medicine.
- Failure to supervise. If you own or manage a nursing home, you can be liable for any abuse committed by your employees. The theory is that you were careless in your staffing, training, supervising, or use of background checks.
Note the deadline to respond.You will receive a summons along with the complaint. The summons should describe the deadline for responding to the lawsuit.
- Pay close attention to this deadline. If you fail to respond in time, the plaintiff could get a default judgment against you. With a default judgment, the plaintiff can put a lien on your property or garnish your wages—all without you being able to defend yourself.
Meet with a lawyer.A nursing home abuse lawsuit is serious. You could pay a considerable amount of money if you lose at trial. Also, assaulting a resident is a crime for which you could be prosecuted. For these reasons, you need to meet with a qualified attorney to discuss your case.
- If you don’t have a lawyer, then you can get a referral from your local or state bar association.Ask for a personal injury defense attorney.
- Consider hiring the lawyer. The plaintiff probably has an attorney. (Double check by looking at your copy of the complaint. If it is signed by a lawyer, then the plaintiff has an attorney.) You will be at a serious disadvantage if you do not have one.
- If you are a certified nurse’s aide or other employee, you might not be able to afford a lawyer. However, you should certainly meet with an attorney for a consultation. Many lawyers provide free or reduced-price consultations.
- You can also ask the lawyer if you can hire him or her to perform only discrete tasks. For example, you might try to handle the pre-trial aspects of the lawsuit yourself but hire a lawyer to represent you in court. Ask any attorney you are referred to if they offer this kind of “limited scope representation.”
Identify defenses as an employee.You should begin building a defense as soon as possible. Your specific defenses will depend on the circumstances of the case. However, there are some common defenses you could raise:
- No abuse took place. Sometimes residents get bruises or cuts through no fault of the nursing home. If someone is scratching themselves deeply, then they could cut themselves.
- A pre-existing condition caused the injury. Some people will bruise easily or break bones due to a pre-existing medical condition, not mistreatment. For example, a resident may break bones because of osteoporosis. You can argue that whatever injury the resident has suffered was caused by an underlying medical condition.
- Someone else abused the resident. You can always defend yourself from an abuse allegation by shifting the blame to a co-worker.
- The resident won’t eat. You might be accused of withholding food from a resident, especially if he or she has low body weight. However, you can counter that the resident refuses to eat and you are not authorized to insert a feeding tube.
Come up with defenses as a manager.If you own or manage the nursing home, then you can raise any defense that an employee can. For example, you can claim no abuse took place and therefore you are not liable for the resident’s injury. Owners and managers can also raise other defenses:
- You properly supervised employees. If you are the owner or manager of a nursing home, then you can defend yourself by showing you were diligent training and supervising your employees. For example, you gave them sufficient training and assigned supervisors to monitor their work.
- You used thorough background checks. To help show that you have not negligently supervised the nursing home, you can argue that you thoroughly vetted your new hires, by performing background checks, including a criminal background check.
Gather relevant documents.You will need to support any defense with evidence. In particular, you should have documents or eyewitness testimony that supports your defenses. You should try gathering this material as soon as possible.
- If you don’t think abuse has taken place, then make sure to document the injury as soon as it appears. If a resident wakes up with deep scratches on his arm, then he may have scratched himself during the night. The sooner you document the injury, the better.
- If you believe the resident has been injured because of a pre-existing medical condition, then gather information on the patient’s health. This information should be in the resident file. Look for any condition which could explain the injury.
- If you believe someone else has abused the resident, then get eyewitness testimony. If the resident has told you someone has abused him, document that information quickly.
- Where a resident refuses food, water, or medicine, you should inform a supervisor so that he or she can address the issue. Also, by reporting the resident’s refusal, you generate documentation to support your defense that you are not withholding necessary food and medicine.
- To support your defense that you have properly trained and supervised employees, gather your employee manuals and training materials. Document the training a new hire undergoes. Also find the results of a criminal background check, as well as any notes taken when speaking to a new hire’s references.
Draft an answer.You will respond to the lawsuit by filing an answer. In this document, you must respond to every allegation the plaintiff made in the complaint. Go through each paragraph and note whether you agree or disagree with the allegation. If you have insufficient knowledge to agree or disagree, then note that as well.
- Your lawyer can draft the answer for you. If you are representing yourself, then you can ask the court clerk if there is a printed answer form to use.
- See Answer a Civil Lawsuit for more information on drafting an acceptable answer.
File the answer.Once you have completed the answer, you should make several copies. Take all of your copies to the court clerk and ask to file the original. The clerk should then stamp all of your copies with the date.
- You also need to serve a copy of the answer on the plaintiff’s lawyer, or on the plaintiff if he or she doesn’t have a lawyer.
Engaging in Fact Finding
Request documents.Once you respond to the complaint, the lawsuit enters “discovery.” During this phase, the parties can request information from each other.
- You need to request documents that will help your case. Request any and all medical records relating to the resident. You can then search these for pre-existing conditions.
Prepare for a deposition.During a deposition, the plaintiff’s lawyer can ask you questions face-to-face, which you must answer under oath. To prepare for a deposition, you should review all relevant documents.
- Your lawyer might also do a practice deposition with you. During the practice session, your lawyer will pretend to be the plaintiff’s attorney and will ask you a series of likely questions. You can then discuss your answers.
- The best way to prepare is to get a good night’s sleep.Depositions can be long and quite grueling—up to eight hours a day, in some situations. Only if you are well-rested will you be able to remain sufficiently alert.
Sit for your deposition.The deposition is typically held in a lawyer’s office. A court reporter should be present to record the questions and answers. To give an effective deposition, remember the following:
- Be truthful. It is perjury to lie in a deposition. Also, a skilled attorney can trip you up if you lie. Even worse, the lawyer can then introduce the lie later at trial. You will lose all credibility with the jury if you lie.
- Don’t answer until you understand the question. Feel free to ask the lawyer to phrase the question differently. Also don’t guess.
- Pause before answering. You should think about your answer before giving it.
- Consult with your attorney. You have the right to consult with your lawyer at any point in the deposition. Simply say, “I need to talk to my lawyer.”
Ask witnesses to sit for a deposition.As the defendant, you can also ask questions in a deposition of witnesses. You should think carefully about who you want to get information from.
- You might want to depose the resident’s family to uncover any pre-existing medical conditions which might be responsible for bruises or fractures. For example, if the resident broke several bones, it could be because of osteoporosis or another condition, not abuse.
- In the deposition, your lawyer can ask the family member to explain the medical conditions the resident suffers from. You can then use this information in your defense by pointing to these pre-existing conditions as the true cause of the injury.
- You might not be able to ask the resident questions. For example, if he or she suffers from dementia, then a deposition would not be helpful.
File a motion for summary judgment.You can avoid going to trial by filing and winning a motion for summary judgment. You would file this motion after discovery ends. In the motion, you argue that there are no issues of “material fact” in dispute and that you are entitled to judgment in your favor.
- A material fact is a fact that would make a difference in the case. What color uniforms your employees wear is not a material fact in a nursing home abuse case. However, whether the resident ever fell out of bed before is a material fact. This fact is material because, if it is true, then it shows the nursing home was on notice to take precautions to keep the resident from falling out of bed.
- If you want to file a motion for summary judgment, then you should have your lawyer draft it. It is a complicated motion which requires close familiarity with the law.
Defending Yourself in Court
Observe a trial.You can hire an attorney to represent you during the trial. If the plaintiff has a lawyer, then this would be the best route for you to take.
- However, if you can’t afford an attorney, then you will need to represent yourself at trial. If you are nervous, then you can observe a trial. Your courthouse is open to the public, and you can sit in and observe one.
- Pay attention to how the participants talk to the judge and each other. Also listen to how they ask questions of the witnesses and how they deliver their opening and closing statements.
Arrive early.You will receive notification containing your trial date in the mail. On the day of trial, make sure that you get to the courthouse early. Give yourself plenty of time to find parking and go through courthouse security.
- Try to get to the courtroom with at least fifteen minutes to spare.
Choose a jury.Jury selection begins with the judge calling a panel of jurors of to the front of the courtroom. The judge will then ask them questions, including their occupation, hobbies, and whether they have served on a jury before.
- If a juror admits to knowing either you or the plaintiff or admits that they cannot be fair, then you should ask the judge to dismiss the juror “for cause.”
- You also should have a certain number of “peremptory challenges.” You can use this challenge to dismiss a juror without giving the judge a reason.
Deliver an opening statement.The trial opens with statements from the plaintiff and defendant. You will go second. The purpose of the opening statement is to give the jury a sneak peek at the evidence. Try to lay out the evidence in the order that it will be presented.
- Don’t argue during your opening statement.Instead, simply tell the jury what the evidence will show. For example, you could say, “As the evidence will show, the defendant is one of three CNAs who look after Mrs. Smith on a daily basis. As the evidence will also show, Mrs. Smith’s broken arm was first noticed during the week that the defendant was on vacation.”
Testify on your behalf.You will probably have to testify at trial. If you have a lawyer, then he or she will ask you questions. However, if you are representing yourself, then you will probably deliver your testimony in a speech to the jury. You should plan on the plaintiff’s attorney cross-examining you.
- During cross examination, remember to remain calm. If the attorney is able to rattle you, then you will appear less credible in the jurors’ eyes.
- Take a breath before answering the lawyer’s questions, and don’t let the lawyer control the rhythm of the questioning. For example, the plaintiff’s attorney might ask a series of short questions to get you in the habit of answering fast. Then the lawyer can spring a complicated question on you in the hopes of getting you to misspeak or to blurt something out. Always control the questioning by taking your time to respond.
- Also try to make eye contact with the jurors. As the defendant, you must gain the jury’s trust. If you avoid eye contact, the jurors might think you are lying.
Make a closing argument.After all evidence has been submitted, each side gets to make a closing argument to the jury. You need to summarize the evidence and argue to the jury that the evidence supports your defense.
- Remind the jurors of specific pieces of evidence that support your case. For example, you should say, “Remember when the plaintiff’s own expert got on the witness stand and stated that Mrs. Smith’s broken arm could have been caused by her osteoporosis? You have evidence right there that the defendant didn’t cause the broken arm—her osteoporosis did.”
Wait for the jury’s verdict.After both you and the plaintiff make your closing arguments, the judge will then give the jury its instructions. In particular, the judge will instruct the jury on the law and what it must find.
- In a nursing home abuse case, the jury must find that the “preponderance” of evidence weighs in favor of the plaintiff. Preponderance means that it is “more likely than not” that you were at fault for the resident’s injuries.
- If the weight of evidence is 50-50, then you should win as the defendant.
Consider an appeal, if necessary.If you lose at trial, then you should consider bringing an appeal. In an appeal, you will point out what errors the judge made, or you can argue that the evidence was so one-sided that the jury could not have rationally decided the case in the plaintiff’s favor.
- Appeals can be expensive. For example, you should hire a lawyer to write the legal brief. Appeals require extensive knowledge of the law and the rules of appellate procedure. Only a qualified attorney will have both.
- You also must pay to have the court reporter make transcripts. The costs of an appeal can add up quickly: transcripts, filing fees, attorneys’ fees.
- Accordingly, you and a lawyer should weigh the costs of the appeal against the strength of your case. If you think the judge made an obvious error, then you might want to bring the appeal.
- You can start the appeal process by filing a Notice of Appeal after final judgment is entered. You have only a limited amount of time—usually 30 days but sometimes as short as 10.
- You should think early in the case about whether you want a jury. If the plaintiff does not request a jury, then you will have a chance to make that request. Courts differ in the amount of time that you have to make the request. In some courts, you need to request a jury when you file your answer. Talk with the lawyer about whether a jury trial is right for you and when you must request it.
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