Nursing Home Neglect & Wrongful Death Lawsuits – When Is it Possible to File a Claim?

By Peter DePaolis

Nursing home neglect and abuse are terrible wrongdoings that take lives. Failing to provide proper care to the elderly goes against a nursing home facility’s legal duties and ethical obligations. Sadly, nursing home neglect is a tragedy that occurs somewhat often in Virginia and across the country.

Known facts about nursing home abuse from the National Center on Elder Abuse conclude that approximately 10% of nursing home residents have experienced some type of abuse or neglect. This percentage is likely low, however, due to underreporting. If you lost a loved one while he or she was living in a nursing home and you suspect elder neglect played a role, find out if you have a wrongful death case with help from an attorney.

Elements of Proof Against a Nursing Home

All wrongful death claims in Virginia come with the same four required elements of proof. An element of proof is something the plaintiff’s side of the case must demonstrate to be more likely true than not true using a preponderance of the evidence. To file and win a case against a nursing home on the basis of wrongful death, your attorney will need to prove liability exists by establishing four main elements.

  1. Duty of care. Your Fairfax wrongful death lawyer will need to prove that your loved one was a resident of the nursing home at the time of illness or death, therefore establishing the home owed legal duties of care to your loved one.
  2. Breach of duty. The nursing home must have breached a duty of care owed to your loved one, such as the duty to reasonably meet the physical, emotional and psychosocial needs of residents.
  3. Next, your lawyer must prove that the nursing home’s negligent or intentional breach of duty caused the decedent’s harm. Your lawyer must make the distinction between the nursing home being responsible and something else, such as natural causes.
  4. In a wrongful death case, damages are usually obvious. The death of the loved one is often enough proof that the filing party has suffered damages. Obtaining compensation for specific losses, such as lost wages, however, may take hard evidence.

With these four elements, you will have the basis of a wrongful death lawsuit in Virginia. The courts will most likely agree to hear your case as long as you have obeyed other state laws, such as the statute of limitations for filing (two years), and are a statutory beneficiary of the decedent. A wrongful death lawyer can help you with each element of proof, along with important tasks such as gathering evidence and following the claims-filing rules.

How to Find Proof of Nursing Home Neglect

The burden of proof rests on the filing party in a wrongful death claim. It will be up to the representative of the estate and his or her attorney, therefore, to prove that a nursing home was negligent. If your loved one has already passed on, he or she cannot provide testimony as to the level of care he or she received. Other nursing home residents and their families, however, may have similar experiences. Statements from witnesses and experts about nursing home neglect in your community could help build a convincing case against the facility.

An investigation of the nursing home could also lead to evidence of resident neglect and/or abuse. A log of incident reports or complaints filed against staff members, for example, could serve the purpose of establishing a pattern of poor resident treatment. Photographs of the inside of the nursing home may also show evidence of resident neglect, such as unsanitary premises, lack of nutritious food or water, or building defects. A wrongful death lawyer may be able to help you investigate a nursing home for signs of neglect to support your claim.

About the Author
Peter DePaolis joined the firm in 1980 and has since represented a large number of individuals involved in automobile collisions, truck accidents, bus crashes, defective products, and medical malpractice cases. A significant portion of Mr. DePaolis’ practice is devoted to working on behalf of people suffering from asbestosis, mesothelioma, and other asbestos-related cancers. He has led his firm’s fight against the asbestos industry and has recovered over $30 million in damages for asbestos victims and their families.