A defendant in a civil case is an individual or entity being sued. In a criminal case, the defendant is the person or entity accused of a crime.
Who Is the Defendant in a Nursing Home Lawsuit?
There may be several factors in determining who the defendant is when filing a lawsuit pertaining to elder abuse or neglect. Typically, the defendants may include:
- the individual(s) who caused the injury
- supervisors who were aware of the injury – this may also include those who were involved in the hiring or the supervising of the alleged offender
- the parent company or the nursing home itself
What Are the Steps in Establishing a Case of Nursing Home Abuse or Neglect?
These are general guidelines of what to expect as you move forward from your initial consultation:
- Investigation Period Prior to Pre-Suit Notice: Once records are received from the nursing home by your attorney, an expert may be retained to review them for merit. The investigation period can last anywhere from 30 to 120 days.
- Mandatory Pre-Suit Notice: If the case has merit, your attorney will send a Notice of Intent to Initiate Litigation, F.S.400.0233, to the responsible nursing home (the defendant). Filing this notice is a requirement prior to filing the lawsuit. As part of the pre-suit period, you may be required to give unsworn testimony of events to the defense attorney. Your attorney will prepare you for what to expect and will also be present for the testimony. The pre-suit period lasts approximately 75 days. It may end with a pre-suit mediation in which the nursing home takes the opportunity to offer a settlement. Other times, however, you may enter litigation before a settlement is offered.
- Filing the Lawsuit (Litigation): When the requirements of F.S. 400.0233 are satisfied, your attorney may file a lawsuit against the nursing home. At this point, you might see several defendants listed on the lawsuit. Shell corporations and other associated entities such as management companies may be listed. A supervisor and a specific worker or workers may also be named.
- The discovery process follows, which is when you answer specific questions for your attorney and gather relevant documentation. This information is presented to the defense attorney.
- After discovery, you may sit for a deposition. You will be asked to answer questions under oath for the defense attorneys. Your attorney will also be present for this portion of the pre-trial activity.
- Discovery requests to the nursing home will be sent by your attorney, and the nursing home staff will also be deposed. The staff will be asked by your attorney about any knowledge they have regarding the incident(s) outlined in the lawsuit.
- Mediation follows discovery and deposition. It is required even if a pre-suit mediation was conducted.
- Expect the discovery and deposition portion of the lawsuit to take anywhere from six to 18 months.
- Court-Ordered Mediation: A formal mediation is required by the court after the discovery process. This is an opportunity for both sides to sit down and discuss the case and possibly resolve it prior to trial. Each side sits in its own room, and a mediator acts as a go-between for each side. This is basically the time to offer and accept a reasonable settlement. Your attorney will guide you as to what an acceptable offer should be based on your case. It is ultimately your decision, however, should you want to pursue a trial or accept a settlement. Expect mediation to take between three and eight hours.
- Trial: If an agreeable settlement can’t be reached, then the process proceeds to trial.
- Jury Selection: Your attorney will select approximately six jurors, and the defense will select six.
- Opening Statements: Your attorney will present opening statements first and outline the basis for the case. The defense attorney then makes his opening statement, which will outline why the evidence supports their case.
- Testimony: Your attorney will begin by calling witnesses as well as experts. The defense then has the opportunity to call their witnesses and experts. Your attorney will then have the opportunity to cross-examine the defense witnesses.
- Closing: After the defense rests, closing arguments are presented by both sides.
- Jury Deliberation: If the jury finds the nursing home to be at fault, they will then consider the expenses incurred by the victim and family when deciding on a dollar amount to award.
While no amount of money can compensate for the pain and suffering your loved one endured, you can rest assured that justice has been served. If you are concerned about your loved one’s situation in a nursing home, don’t hesitate to get more information.
If you’d like advice from a compassionate and experienced attorney regarding your legal options, contact a nursing home abuse lawyer at 1-800-516-4783. A legal counsel would be happy to offer a free initial consultation and advise you based on your circumstances.
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