When an instance of alleged elder abuse or neglect occurs, a host of
legal issues may arise. You may be confronted with issues ranging from
premise liability to inadequate security to product liability to
To help you understand the legal process and the potential challenges
you will face in any legal battle, InjuryBoard has put together the
following information to help you better understand and move through the
legal process by understanding the general issues involved and what you
can expect as part of the litigation of your case.
Common Categories of Legal Issues
Premises Liability – In legal terms, a resident at a nursing
home is considered a business invitee, meaning that the business (the
nursing home or assisted living facility [ALF]) would owe the invitee
(the senior citizen resident) the highest duty of care. This means that
the nursing home has a legal duty to regularly inspect the premises,
discover dangerous conditions, and then make them safe for your loved
one and all other residents. If the facility knows or should have known
about an unsafe condition on the premises, or if he or she could have
discovered the unsafe condition through reasonable inspection, they will
be liable for injuries incurred.
Inadequate Security – If a facility offers its residents
inadequate security that leads to an accident or injury, that facility
may be liable to a lawsuit for their neglect. If a facility is
understaffed, some residents are likely to receive substandard care. If
it is proven that an accident resulted from inattention due to
inadequate security, the facility could also be held responsible.
Medical Malpractice – If a facility’s doctor, nurse, or other
healthcare provider made a medical error in providing care, it may be a
case of medical malpractice and subject to a lawsuit. Medical
malpractice claims, however, are frequently ineffective. In some
states, the maximum amount of money recoverable in a medical malpractice
suit is capped at $250,000 (excluding medical costs and lost
earnings). While this may seem like a lot of money, after the costs of
bringing the case to trial and your attorney’s fees are deducted, there
may not be much left. As a result of these caps and depending on your
location, many attorneys may be reluctant to take on medical malpractice
Wrongful Death – When elder abuse or neglect causes death, a wrongful death law suit" may be appropriate. As a part of this claim, it is important to determine which people are entitled to file a law suit on behalf of the deceased
person’s estate. When you choose to file a wrongful death suit, you
must first establish the deceased’s beneficiaries, the beneficiaries’
relationship to the deceased, and the heirs. This unearths a multitude
of other relevant questions, such as wills, the estate, and whether the
deceased died intestate (the person died without leaving a will or
The Legal Process
Once a law suit is filed, you should expect an investigation and
discovery period. During this time, the attorneys for both sides of the
litigation (plaintiff and defendant) will research issues regarding
their cases, conduct interviews, and file motions relating to their
There are generally three methods by which a case can be resolved.
Settlement – This occurs when, prior to trial, the parties to
the dispute agree on an outcome. Many times, the defendant agrees to
pay the plaintiff an agreed-upon sum of money.
Mediation – This is a type of dispute resolution in which a
neutral third party hears both sides of the dispute and then assists the
parties in reaching an agreement.
Trial – In a trial, both parties in dispute present
information, evidence, and witnesses before the court in an effort to
achieve a resolution to their dispute. Many cases reach a settlement
before going to trial.
Time Constraints of the Legal Process
When considering a law suit, you must always be aware of any statute
of limitations. Generally speaking, a statute of limitations is just
the maximum period of time, after a certain event occurs, that a person
may bring a law suit based on that situation.
The statute of limitations for bringing a claim based on elder abuse
varies by state. In some states, the statute of limitations is two
years, but this limitation can be extended if the resident is legally
incompetent. Sometimes there are specific requirements if the facility
is owned by a government agency. Because this is a complex legal area
with many variables, we recommend family members who are considering
these questions or deciding whether to file suit contact an attorney as
soon as possible.