Taking Legal Action for Nursing Home Abuse
The Criminal Trial
Depending on the circumstances, it is possible (and even likely) that criminal charges may be filed by the state or county prosecutor. You may be asked if you would like to press charges, but in a criminal case, the prosecution represents the State, not the individual victim or his/her family. You will in all likelihood be issued a subpoena and required to testify on behalf of the prosecution.
You should expect that giving testimony in a criminal trial against the nursing home responsible for your parent's or relative's death or injury will be an uncomfortable and even painful experience, particularly when you are cross-examined by the defense lawyer. The defense will question your evidence and your credibility and may even attempt to humiliate you. This is his/her job; be prepared.
Although a criminal case may very well result in stiff fines and even prison time for those responsible for nursing home abuse or nursing home neglect, and the facility may be shut down, you and your family will receive no compensation unless you file a civil case.
Filing a Lawsuit
Regardless of whether or not the state pursues criminal charges for abuse in nursing homes, you have the right to file a civil suit on behalf of the resident. Aside from the fact that you can ask for monetary damages, a civil case has other advantages to criminal court, primarily because proof in the former is subject to a lower standard. Whereas the verdict in a criminal case must be based on reasonable doubt, a decision in a civil case is based on the preponderance of evidence. This makes if much more likely that a case against a nursing home will go in the favor of the plaintiff – which, in this case, is you.
Be aware however that injury and wrongful death lawsuits are subject to statutes of limitations, which means there is a certain period within which you must file a suit, with the help of a nursing home abuse lawyer, or lose your right to do so. This varies from one state to another, but in general is one or two years from the date of the cause of action; in this case, the injury or death of the nursing home resident.
Caldwell, Janice M. and Marshall B. Kapp. "The Rights of Nursing Home Patients: Possibilities and Limitations of Federal Regulation." Journal of Health Politics (June 1981).
FindLaw. "Legal Rights of Nursing Home Residents." http://injury.findlaw.com/nursing-home-abuse/nursing-home-abuse-basics-rights.html (accessed January 15, 2010).