Anatomy of a Nursing Home Injury Claim
Introduction
Now that you’ve contacted a law firm to investigate your claim, how does this process unfold? What will be required of you?
This is a sneak peek of how this process is likely to unfold. Of course, your case is unique, so it will have it’s own course. This guide will help you understand the big picture before getting started.
This covers everything all the way through trial.
Here’s an important thing to keep in mind: the only power we have is to force the defendants to sit and be judged by a jury at trial. We cannot force a settlement, we cannot force them to change their ways–even though that is the most common outcome in our cases. They settle and shape up to avoid going to trial.
So while trial is most likely foreign and scary to you right now, trust that: (1) the other side fears it a lot more; (2) there is a 95% chance a case never goes to trial; and (3) we’ll have you well prepared and confident if this is a case that should go to trial.
Stages of a Claim
Stage 1: Preliminary Investigation
From the time you first start giving us information about your case, we’re gathering information so we can conduct a preliminary investigation to determine:
Whether and how the facility or providers were negligent;
How that negligence caused harm; and
Whether there is a viable claim for which we would be the right fit for you.
It is not uncommon for us to investigate a claim and learn that there were injuries or negligence the facility never even told the family about. Or we learn there’s some reason that, despite poor care, there is no viable claim to be made.
We know our clients are interested in getting answers, accountability, and help prevent this form happening to other residents. Whether the facts and law will allow that is a key question we answer for you in this stage.
Stage 2: Investigation
During this phase, you’ll be asked to provide information about medical providers, potential witnesses, and your direct experience with the facility.
We’ll gather medical records, analyze care, and often work with experts (doctors, nurses, and more) to evaluate the case.
We’ll identify and interview key witnesses.
We’ll prepare an analysis of the case and review the findings with you.
We’ll approach the other side with a proposed resolution (“Demand Package”) to see if the case can be resolved.
We’ll prepare the pieces we’ll need to proceed to a lawsuit if the case does not resolve.
Stage 3: Lawsuit Filing
Under Ohio law, we have 1 year in which to file a lawsuit for a personal injury involving medical care (the injured person’s pain and suffering), and 2 years to file a wrongful death claim (the family’s claim for their loss and grief). This time period is called a “status of limitations.”
Part of our job is to evaluate and protect this deadline by getting the case timely filed.
The complaint is the first document that is filed with the court. It is the document that starts the lawsuit.
Depending on how complex the case is, the complaint may take several days or even a few weeks to draft. This is because it is not always obvious who owns and operates a nursing home or hospital. For example, in a nursing home, each building may be organized as its own corporation, but the aides, nurses, and other people who actually care for patients may be employed by a different company. The physical and occupational therapists may also be employed by another company who then bills the nursing home for the services.
To make things even more complicated, the corporations that own the building, employ the staff, and run the physical and occupational therapy may all be owned by a larger “parent” company who decides everything that happens at the nursing home. The nurse practitioners and doctors may be employed by someone else altogether. Hospitals are not much different.
As you can see this can get complicated very quickly, but it’s important that all of the responsible people and companies are included in the lawsuit. This requires a lot of investigating.
After the lawsuit is filed, the complaint (the document that is filed with the court) must be delivered (also called “served”) to the defendants. This is usually done by certified mail but may also have to be hand delivered by someone called a process server or even a sheriff’s deputy.
After the defendants receive a copy of the complaint, they are required to file an answer. An answer is a written statement filed in court where the defendants deny the allegations of the lawsuit.
We handle all of this process for you.
Stage 4: Discovery
After filing the lawsuit, we get a schedule in which to conduct the case, called a “case schedule.” The court will set an initial pretrial conference, also sometimes referred to as a case management conference. The purpose of this conference is to introduce the judge to the case and set certain deadlines and other parameters that the attorneys are expected to follow. Usually these conferences are for attorneys only and clients are not required to be there.
This is when we get to send them written questions to answer under oath, and get to force their people to sit for an interview under oath (called a “deposition”). They’ll also get to send us questions and take depositions. We call this the “discovery” process in a lawsuit.
Discovery typically lasts 6-9 months.
We engage experts in depositions after all the “regular” witnesses.
There is usually a tremendous amount of work that takes place during this period that clients are unaware of.
Yes, if you file a lawsuit, you will probably be deposed. It might sound intimidating, but if you’re properly prepared (and you will be), you will be empowered at your deposition. Remember that if you filed a lawsuit it means something bad happened to you and the case was thoroughly investigated before it was filed. Depositions are about getting to the truth. If you’ve come this far, the truth is on your side!
In our experience, we’ve seen firsthand that what begins as a nerve-racking endeavor often becomes a cherished and empowering experience. We work with our clients for several days to make sure that they are in the right mindset for their deposition.
Stage 5: Final Pretrial
Most courts set something called a final pretrial. The final pretrial is usually the last time the parties will be together in front of the court before trial. Unlike the initial pretrial conference, clients are almost always required to be at the final pretrial.
The final pretrial usually happens 30-45 days before trial.
Courts sometimes attempt to get the different sides to discuss settlement at this stage of the case. But settlements cannot be forced and shouldn’t be considered just because a court wants the parties to resolve the case. A settlement may or may not be a good idea in your case, but you should never settle a case just because you are close to trial or it’s the final offer.
You’ve come this far, sat through a deposition, your attorneys have spent hundreds or even thousands of hours working on the case, and now trial is right around the corner.
Stage 6: Trial
Trial is the final stage in the case. It’s the time when strangers from the county where the courthouse is located. It’s the final stage in a very long journey toward justice.
There are four parts to every trial (1) jury selection; (2) opening statement; (3) presentation of evidence; and (4) closing arguments.
How long each of these stages lasts depends on the case and the judge’s preference. On average, a trial lasts 1-2 full weeks.
Stage 7: After Settlement or Trial
After a case settles of goes to trial verdict, we need to process the results. (Sometimes a trial will go through an appellate process.)
We need to negotiate all the liens (Medicare, Medicaid, etc.), prepare the settlement approval paperwork with the probate court, and more, before we’re able to finalize the settlement / payment and get things wrapped up.
Conclusion
How your case proceeds will depend on the specifics of the case and our strategic advice. We will ensure you feel prepared and confident at every stage of the process!
You have my word on it!
William Eadie
Nursing Home Injury Lawyer