Frequently Asked Questions about Nursing Home Abuse and Assisted Living Negligence Cases in Virginia
What is a nursing home negligence case?
A negligence case can be brought against a nursing home, assisted living facility or other healthcare provider. A case typically alleges negligence (breach in the standard of care) along with some significant injury. Examples of typical cases include the following: pressure sores or decubitus ulcers, falls causing injury, severe dehydration, malnutrition, wrongful death, physical abuse, sexual abuse, neglecting hygiene needs, infections, and other adverse outcomes.
What should I do if I experience or witness abuse or neglect?
if you loved one is in immediate jeopardy, contact adult protective services or the relevant licensing agency.
If you have recently discovered the neglect and injury, make sure the patient gets treatment at a hospital and that the underlying circumstances of the event are documented. Photograph the injury and conditions that led to the injury. Some facilities are notorious for not documenting potentially incriminating information in the record, i.e., that the patient fell because she got out of bed after the staff ignored her call bell.
Ask the direct care staff what happened and make sure the facility does an incident report. Make written notes of your conversations. Make sure to ask the patient what happened and if she can provide a useful history, that it is communicated to her treating providers at the hospital.
Consider reporting the neglect or abuse to the appropriate agency. Review this article for more information, including links to government agencies.
What is the difference between a nursing home and assisted living facility?
A nursing home is licensed to provide skilled care at a higher level than assisted living facilities. Assisted living facilities generally do not provided skilled nursing care or rehab. In Virginia Assisted Living Facilities are non-medical residential settings that can provide or coordinate personal and health care services.
Assisted living facilities are increasingly recruiting high acuity (very sick or demented) patients for their specialized Alzheimer’s units. Many patients who used to be cared for in nursing homes are choosing assisted living facilities because they provide a more home-like environment and structured activities. However, unless those facilities are staffed properly with trained nursing staff, the residents can be subject to increased risk of harm.
Assisted living facilities may be liable under the Virginia Consumer Protection Act where they promise to provide a certain level of care that does not materialize. See the article.
What are the steps in pursuing a nursing home negligence or malpractice case?
Typically, the first step involves obtaining the relevant medical records, opting out of any mandatory arbitration provision, and having an attorney review your case. It’s important to act early, as Virginia law only gives you a 60-day window to opt out of any mandatory arbitration agreements you or your loved one may have signed during the admission process.
Your attorney will assist you in getting records and having them reviewed by the proper medical expert. Most malpractice attorneys work on a contingency fee basis, which means they collect a percentage of your recovery, so you do not pay attorney’s fees unless there is a recovery.
How are Attorney’s Fees paid and what is a contingency fee agreement?
In malpractice and nursing home cases handled in this office, you pay no attorney’s fees up front. Attorney’s fees are paid as a percentage of the recovery, typically 35% before a lawsuit is filed and 40% after a case is filed. If we do not recover a settlement or verdict, you do not pay attorney’s fees. But keep in mind that while attorneys advance their time, the client is still responsible for costs. Those costs can be substantial, especially where you have to hire multiple exerts to prove your case.
How do I know if I have a case worth pursuing?
That’s the reason that you engage an attorney to review your case. After collecting the records, the attorney will review the case and often hire a medical expert to review the records. In most states, an attorney will have to engage an expert before filing a lawsuit.
A good case requires both negligence and a significant injury. If the nursing home was negligent in causing a fall, the case is not viable unless there is a significant injury, like a fracture. Without a concrete, substantial injury the value of the case may not exceed the potential costs in a malpractice case.
How do I determine what attorney to hire?
Do research to determine if the attorney handles and actually tries the type of case you want to pursue. Just because an attorney has a good website does not mean he is a skilled trial lawyer. He may be referring your case to another attorney or a junior associate.
Experience and results will be a good predictor of your attorney’s qualifications and skill level. Also find out if the attorney has established, published case precedents in his area of expertise.
Review the attorney’s testimonials, which provide important information about the work he has done for other clients.
Call the attorney and talk to him personally. If he does not have time to talk to you about a new intake (which should be a priority for him), that’s a good indication that he may be spread too thin. Always insist on talking to the attorney himself, as opposed to a screening paralegal or non-attorney.
How do I determine the potential value of a malpractice or nursing home abuse case?
Case value generally refers to what your lawyer would reasonably expect to settle the case for. Settlement value is generally going to be lower than the trial value of your case, as you are saving costs and reducing your risk by avoiding a trial.
Case value is dependent on a number of factors including, but not limited to, the severity of the injury and associated pain and suffering, the amount of medical bills and the jurisdiction where the case is filed. Cases with severe injuries, like death, fractures or traumatic brain injuries will have much higher recoverable damages than cases with minor injuries (like bruises or small skin tears).
Jurisdictions affect case value because some states have significant caps on damages, like Virginia, Maryland and West Virginia. In addition, some counties within states are also known for giving larger verdicts and as such, have higher potential settlement value. For example, in Virginia, the cities of Richmond and Newport news are considered among the best jurisdictions for Plaintiff’s cases.
The severity of any injury is a critical component of case value and attention is also paid to special or economic damages. Cases with high medical bills or lost wages are going to have more value because such damages are recoverable and depending on the state, may not be limited by malpractice caps.
Claims involving future damagers or permanency have more value than cases without such damages. Future economic damages are often not limited by malpractice caps, like in the states of Maryland and West Virginia. In most states you will need expert testimony to support any claim for future damages. In some states your future damages may be reduced to present value, or what the value of the future award would amount to in today’s dollars.
What are medical malpractice caps, and can they reduce my recovery?
Caps are limits on your damages that apply regardless of the severity of your injuries. In Virginia, medical malpractice caps are relatively high compared to other states, like West Virginia, where there is a $250,000 cap on damages for pain and suffering. In most nursing home or assisted living cases because the victim tends not to have much in the way of economic damages (like lost income or future medical bills), the caps are unlikely to play a role in your case.
As of 2022, the cap for total damages in a Virginia medical malpractice cases is $2.55 million, and goes up $5,000 per year until 2030, when it will reach $2.95 million. Total damages include both non-economic damages (pain, suffering, disfigurement, sorrow, mental anguish) and economic damages (lost income and medical expenses).
To review a scholarly article on medical malpractice caps in Virginia, click here.
What are Medicare or Medicaid liens and will they apply to my case?
Liens are legal obligations to pay the government back money that they paid for your medical expenses. There are other types of liens, but Medicare and Medicaid liens are the most common in nursing home cases.
Its important to assess these liens early on in your case, so you can challenge and/or negotiate liens that are excessive or not connected to your injury. Our firm will write to Medicare and Medicaid early on to assess and address your lien as part of your case. Our firm has negotiated and appealed various lien determinations by Medicare to maximize recovery for our clients.
CMS has helpful information on Medicare liens.
If the injured Party has died, will someone need to be appointed administrator of the Estate?
Yes, typically the administrator is a family member. The appointment usually occurs in the local circuit Court, in the county where the decedent last resided. You should contact an attorney to discuss the appointment process and also arrange to have him opt you out of any jury trial waiver forms you may have signed during the admissions process. My office routinely issues opt out letters and will be happy to assist you in this process, with no obligation.
Finally, there are different code provisions that can impact the scope of your authority as administrator. In short, if the clerk uses the wrong code provision, it could limit your causes of action. Talk to an attorney before you meet with the clerk and if that is not possible, ask the clerk to appoint you under Virginia Code §64.2-454, which gives the administrator the authority to sue for both survivorship injuries (pain and suffering) and wrongful death damages.
My admission agreement waived my right to file a case in Court, do I still have a case?
Yes, you still have a case, but you may have to go the arbitration route, which usually favors the healthcare provider. Many nursing facilities require that you sign documents waiving your civil rights to go to Court and recover for your injuries. Buried in the paperwork is a mandatory arbitration provision that makes the prosecution of your potential case much more difficult. For information about how to overcome these agreements, review this article.
Virginia law allows a patient to opt out of this arrangement if it’s done within 60 days of the termination of health care. If the neglect causes the death of the patient, his administrator can also opt out within 60 days of the appointment of an administrator. Va. Code 8.01-581.12.
My mom developed a pressure wound, does that mean the nursing home is automatically negligent?
Most pressure sores or bed sores are avoidable with proper care. However, there are some patients who are terminal or so medically compromised, that the development of a pressure wound is “clinically unavoidable.” Most pressure sore cases boil down to a battle of the experts as to whether the wound was clinically unavoidable. Click here for a review of a helpful article outlining the medical considerations.
We work with experts who are adept at reviewing records and making the determination of whether a wound should have been avoided. Under Federal regulations, before a facility can determine that the wound is unavoidable, they must have implemented comprehensive preventive measures to avoid the wound in the first place. Those measures typically include frequent turning, specialty mattresses, moisture barriers, toileting schedules, frequent hygiene and skin assessments, therapy, nutritional interventions and wound VACs. A facility cannot let a patient lie on their back for many hours, without turning, and then argue the wound was unavoidable.
CMS provides helpful guidance on successful strategies for pressure ulcer prevention.
My dad suffered a fall from a fracture, do I have a malpractice case?
That depends on the circumstances of the fall and whether it was preventable with proper care and supervision. Both nursing homes and assisted living facilities are obligated to assess a patient’s fall risk and come up with a fall prevention care plan to meet his or her needs. If they cannot safely meet the patient’s needs in a skilled care environment, they have a duty to discharge to a higher level of care.
Virginia has specific assisted living standards that require a resident’s fall risk to be reevaluated and documented after every fall and annually even without a fall.
Sometimes nursing homes may attempt to cover up the incriminating facts about a fall. It is important that a loved one ask the direct care staff (as soon as possible) how the fall occurred and what will be done to prevent future falls. If your family member is demented, there should be a designated person participating in care planning decisions, which should include fall prevention. Make sure the facility knows that you, the medical decision maker, want to be informed of any fall, even one that does not cause apparent injuries.
My mom died unexpectedly – should I investigate a malpractice case?
That depends on what is listed on her death certificate and whether she had passed away at a hospital where they may have done labs or testing to determine an accurate cause of death. Where a patient passes away at a nursing home, it may be difficult to accurately assess the cause of death. Below is an article that addresses the accuracy of death certificates. (https://www.jeffdowney.com/death-certificates-how-accurate-are-they/)
If there is any question that the death not natural, or due to neglect, you can request a cause of death evaluation by a licensed medical examiner. Under Virginia law, any death involving injury or trauma, or suspicious circumstances, should be reported to the medical examiner. However, nursing homes often fail to make such referrals.
Often the funeral director can be a great source of information. The director also has the authority to contact the medical examiner’s office for an official autopsy.
What is contributory negligence and does in apply in Virginia?
Contributory negligence is a legal principle that holds that if a Plaintiff is negligent in contributing to his harm, he is completely barred from recovery. Most states apply comparative negligence, but Virginia is one of the few states that still applies pure contributory negligence principles. However, if the Plaintiff is mentally incapacitated, he generally cannot be held to a contributory negligence standard.
How long do I have to bring a negligence against a nursing home in Virginia?
As with any other malpractice cases in Virginia, you have 2 years from the date of injury to file a lawsuit. However, to pursue a lawsuit you must obtain certifications from reviewing experts, which can take time. So, act promptly after an incident to secure legal representation. (https://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-243.1/)
There are some exceptions to the two-year limitation period. If the patient is mentally incapacitated, the statute of limitations is generally tolled during the period of incapacity. Also, if the defendant acted to conceal the injury or engaged in intentional misrepresentations to prevent the discovery of the injury, the limitation period is extended to one year after the discovery of the injury. (https://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-243/).
How long should I expect a malpractice case to take?
Most complex medical malpractice cases are going to take from one to two years depending on the nature of the claim and jurisdiction.
If you have a strong liability case, some insurance companies will settle out of Court, which saves significant time. Our office has settled malpractice cases within 6 -8 months, but that is the exception.
However, it usually makes sense to file your case early to give the insurance company time to evaluate the case. If you wait until the statute of limitations is approaching, the case will likely be assigned to a defense attorney. And defense attorneys, who get paid by the hour win or lose, have a strong incentive to work up and bill a case before they settle it.
About Jeffrey Downey:
The author, Jeffrey Downey, has over 30 years of litigation experience and started his career as a defense attorney. He has established numerous favorable legal precedents in his field, and he also teaches other Virginia attorneys how to handle complex malpractice cases. Mr. Downey is admitted to practice in the states of Virginia, Maryland and Washington D.C.
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