We usually associate nursing homes with safety. This is why when our elderly need special care, a nursing home is one place we turn to. Unfortunately, much like everywhere else, nursing homes can be unsafe from time to time, leaving both residents and visitors susceptible to being injured in a fall.
If you or a loved one have fallen in a nursing home, you are probably facing unwelcome medical expenses, unfortunate injuries, and emotional consequences as well. Thankfully, you do not need to suffer in silence. Through a personal injury lawsuit, you may be able to recover compensation. In this article, we will explain your options for compensation and how a qualified personal injury attorney can help you and your family get the justice you deserve.
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Two Options for Recovering Compensation: Insurance Claims and Lawsuits
Two main paths to compensation for your injuries are filing a lawsuit and making an insurance claim. Let’s take a closer look at each.
Making an Insurance Claim
When the person or entity responsible for your accident has liability insurance, you can try to recover compensation for your injuries by making an insurance claim. Similar to a lawsuit, an insurance claim involves accusing someone of causing your accident and asking that they be forced to pay you for your injuries. Instead of a court of law, your insurance claim will be directed towards the insurance company of whomever you are accusing. After receiving your claim, the insurance company will assign a case worker to your claim. This case worker is known as a “claims adjuster.” The adjuster is the insurance company’s employee. Their job is to investigate your claim and decide whether the insurance company is responsible for compensating you. If they find in your favor, the insurance company will have to compensate you. If they find against you, your claim will fail. OFtentimes if they decide against you, or they offer you some money but not enough to adequately compensate you, you’ll find yourself facing the decision of whether or not to file a lawsuit.
Filing a Lawsuit
Filing a personal injury lawsuit means filing paperwork in a court of law accusing someone of being to blame for your accident and asking that the court order that person to compensate you for your injuries. Once you file your paperwork, whoever you are suing will get to file a response where they tell their side of the story. Then, a couple things can happen. In some instances, you will both go to court to present your respective cases to a judge or jury. That judge or jury will then decide whether whoever you accused was responsible for your accident and whether they should have to pay you for your injuries. Other times, your case will be resolved early in what is known as a “settlement agreement.” We will cover this topic in greater detail later in this article.
Why You Will Need an Attorney
Whether you opt to file a lawsuit or even just pursue an insurance claim, there are countless reasons why you will want an experienced personal injury attorney handling your case. Here are just two really good ones:
1. The law is complex.
If you’ve ever walked into an attorney’s office, you will know that somewhere in the room you can find a bookshelf packed full of thick books. These are not just for display. The law is complicated, even for attorneys who spent three years and countless hours studying it in law school. Without a clear understanding of the law, you won’t be able to figure out whether you have a viable claim and you certainly won’t be able to build and prove a strong case.
2. No one else will help you get justice.
This might sound harsh, but it’s important to understand. In all likelihood, no one involved in the insurance claims process will truly care about your claim except for you, your loved ones, and your attorney. The claims adjuster, as an employee of the insurance company who could be on the hook for compensating you, has reason to want to find against you. Similarly, the courts are only concerned with providing a fair process and following the legal requirements. And whoever you are trying to hold responsible wants to avoid liability at all costs. Worst of all, the people you are up against, insurance companies and the other party’s attorneys, will all know the process far better than you.
Which Option Is Better? Lawsuits vs. Insurance Claims
Victims of falls may wonder which option is better. The decision can be tricky because both paths to compensation have pros and cons. We think there are two main differences you should be aware of when weighing your options:
- Insurance claims are simpler than lawsuits.
- Lawsuits can be more fair than insurance claims and can lead to a greater monetary award.
Let’s take a closer look at both.
1. Insurance claims are simpler than lawsuits.
Lawsuits are complicated. There are many procedural rules you have to follow. They concern things like what paperwork you need to file, when you need to file it, and how you need to file it. Lawsuits are also designed so that the person making the claim is responsible for investigating and proving their claim; this is known as the “burden of proof.” On the other hand, insurance claims are quite simple. With an insurance claim, you aren’t responsible for much. Once you make the initial claim, the adjuster takes over. They investigate, compare the facts to the law, and decide who is to blame. You are only really responsible for participating in the investigation when necessary. However, the objective of the insurance company is to pay you as little as they can reasonably get away with.
2. Lawsuits can be more fair than insurance claims and can lead to a greater monetary award.
Insurance claims can be unfair. The person investigating and deciding your claim is the insurance adjuster. The adjuster is an employee of the insurance company. And the insurance company will be responsible for compensating you if your claim is successful. So, if the adjuster finds in your favor, their boss, the insurance company, will be on the hook for a lot of money. This makes the insurance claims process a little bit fishy. It seems the adjuster has a reason to be biased against you and towards their employer. Lawsuits, on the other hand, avoid this problem entirely. Cases are decided by impartial judges or juries who don’t have any personal or professional stake in your case’s outcome. As a result, a lawsuit can often result in a far greater monetary award than you could expect from the initial insurance claim that was filed.
Choosing Between the Two – or Doing Both
The choice between a lawsuit and an insurance claim is entirely up to you, but an experienced personal injury attorney can help you weigh your options. You should ask yourself what matters to you more. Is it more important that you have a more hands-off process with less responsibility? Or is fairness of greater concern? One disclaimer is that while lawsuits are more complicated than insurance claims, this doesn’t necessarily affect you, the injured client. This is because your attorney will be handling all of the work. Ultimately the most important factor to you could be whether the monetary award will suffice to cover the damages. Your attorney may decide to first see what the insurance company is willing to offer pre-suit, and if it’s not adequate file a lawsuit at that point in time. The two options are not mutually exclusive.
Reaching a Settlement
In our experience, many personal injury cases are resolved by a “settlement agreement.” This is when whoever is accused of causing the accident agrees to compensate the accident victim. And in return, the victim agrees to forever drop their claim. All this happens without a court or insurance adjuster deciding the case. Basically, a settlement can occur at any point, from right after your fall until just before a ruling from the court.
You might be curious as to why someone accused of causing an accident would agree to pay the victim without having a court or adjuster decide the case. Parties accused of causing an accident normally agree to settle only when they believe that they will probably lose in court. At that point, settling becomes an attractive solution. This is because lawsuits and insurance claims tend to be time-consuming and expensive. So, by compensating the victim without going through a lawsuit or insurance claim, the accused party avoids a lot of expenses. On the flip side, if they think they have a shot at winning the case, settling doesn’t make sense, and they probably won’t do it.
This leads us to how you can achieve a fair settlement. Since accused parties are motivated to settle when they think they will probably lose the case, the best way for you to achieve a settlement is to have an attorney help you build a strong claim. Then, whoever you are accusing should be convinced they will lose the case, leading them to agree to settle. But bear in mind that convincing the other party to settle is only half the battle. You will also need to negotiate a fair settlement amount.
The reality is that there are no laws requiring a settlement amount to be fair. As long as the parties freely agree to an amount, that settlement will usually be legally valid. Ordinarily, settlement amounts are modeled after what a jury would be likely to award the victim if the case went to court. But this is just a common practice, not a requirement. For you, this means you will also want your attorney to help you at the negotiating table.
Who Is Responsible for a Fall at a Nursing Home?
Finding out who is legally to blame for a slip and fall accident can be complicated. For a nursing home, the responsible party will be whoever is responsible for the safety of the premises where the accident occurred. Figuring out whom this might be can be difficult because many different people and entities can be responsible for safety at a nursing home.
Most commonly, the responsible party will be the nursing home itself. A nursing home usually takes responsibility for the safety of its premises. But this isn’t always the case:
- For example, a nursing home might be leasing its building from a commercial landlord. The lease might make the landlord responsible for certain areas or conditions of the property.
- Or, a nursing home might use a third-party contractor, like a maintenance company. And their contract might make the maintenance company responsible if their work leads to someone being injured.
- It’s also possible for a public entity to be responsible. This could be because the public entity runs the nursing home. Or, it could be because the public entity is responsible for a portion of the nursing home, like the parking lot.
Another dimension your attorney may need to consider and investigate is the exact “status” of whoever is responsible for your accident. This mainly applies to nursing homes. By “status,” we mean what they are officially considered to be: a hospital, a non-profit, a corporation, etc. This is because sometimes, nursing homes will look to avoid responsibility by claiming they should be classified as something other than a nursing home. This is what happened in the case of Gould v. Theresa Grotta Center.
Ms. Gould, a patient at the Theresa Grotto Center, sued the Center after she slipped and fell in a puddle of urine in the hallway. The Center tried to avoid responsibility by claiming they were a charitable organization. They relied on a New Jersey law saying “no nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes” can be held liable in these types of cases. In this case, the court, after taking a deeper look into the Center’s purposes and functions, ultimately agreed that the Center was a charitable organization that could not be held liable for Ms. Gould’s injuries.
With these many possibilities, figuring out who can be responsible for your accident will require some investigating. Your attorney will need to take a closer look at what exactly caused your injury and who is responsible for the safety of where your injury happened.
When Is Someone Considered at Fault?
For someone to be held responsible for your accident, they must be at fault in the eyes of the law. The rule is that the person responsible for the safety of the premises where you fell is to blame when
- You were lawfully on the property
- You were injured by a dangerous condition of the property
- They had notice of the dangerous condition
- They failed to address the dangerous condition
Each element of the rule requires some explaining.
- You were lawfully on the property.
Property owners and operators are only really responsible for the safety of people who are lawfully on their property. This is mainly people they invite onto the property. Trespassers, on the other hand, have a very limited right to recover compensation for injuries from an accident on property they weren’t supposed to be on in the first place. So, for the rule in this section to apply, the injured person must have been on the nursing home property lawfully.
2. You were injured by a dangerous condition of the property.
Your injuries must have been caused by a dangerous condition of the property. This may seem self-explanatory, but it can be something the other party contests either in court or in the insurance claims process. For example, the nursing home would hardly be responsible if you or your loved one slipped and fell on perfectly safe ground only because you or they were having a heart attack.
3. They had notice of the dangerous condition.
Whoever is responsible for the safety of the nursing home property where you fell must have had notice of the dangerous condition that caused your injuries. There are a few ways they can be said to have had “notice,” including:
- If they created the dangerous condition
- If they were notified of the dangerous condition
- If they discovered the dangerous condition
- If they should have known of the dangerous condition because it was open and obvious and existed for a reasonable amount of time
4. They failed to address the dangerous condition
“Addressing” a dangerous condition means either remedying it or warning of it. For example, you might address a slippery wet floor by mopping up the liquid or putting up a sign to warn people that it is a hazard. Those responsible for property don’t have to be perfect in addressing a dangerous condition. They just need to do what is reasonable. So, it must be true that whoever you are accusing did not take reasonable steps to address the dangerous condition that caused your injuries.
How to Prove Fault in These Cases
If you file a personal injury lawsuit, you and your attorney will need to prove that whoever you are accusing was at fault for your accident. To do this, your attorney will try to prove each element of the liability rule we discussed in the last section. To prove these elements, your attorney will need plenty of strong evidence. They will need to conduct a thorough investigation, consulting sources of evidence such as:
- Interviews with eyewitnesses
- Interviews with nursing home staff
- Video surveillance footage
- Maintenance logs
Once your attorney has lots of good evidence, they will need to present your case convincingly to the court. They will do this by demonstrating to the judge or jury how the evidence convincingly proves each element of the liability rule. They will also undermine your opponent’s defenses by making legal arguments against them, casting doubt on their evidence, and effectively cross-examining their witnesses.
What Happens When a Nursing Home Fall Is Not Caused by a Dangerous Condition on the Property?
Consider this scenario. Suppose your family member slips and falls in their room at a nursing home. The room contained no dangerous conditions. Instead, they fell because they were too weak to walk. The facility knew they were too weak to walk. Your family member had only gotten up because they desperately needed the bathroom. A nurse was supposed to help them to the bathroom, but she failed to check up on them and didn’t come when she was called.
Here, the accident wasn’t caused by a dangerous condition of the property, so the type of slip and fall personal injury lawsuit we’ve discussed so far in this article isn’t really on the table. But the nursing home was still careless, and the result was that your family member was injured. Surely they can’t get away with this, right?
Fortunately, you do have other legal options. The State of New Jersey takes the health and safety of nursing home residents seriously. This is reflected in the fact that there’s more than one way for residents to recover compensation should they become injured. So far, we have talked about bringing a personal injury case based on the nursing home’s premises being unsafe.
One is to sue under New Jersey’s nursing home abuse and neglect laws. NJ Rev Stat § 30:13-8 provides that nursing home residents whose legal rights are violated can sue the violator in court to enforce those rights and recover compensation. The “legal rights” they are talking about are defined in NJ Rev Stat § 30:13-5. The right most relevant to falls is “the right to a safe and decent living environment and considerate and respectful care…”
The right to sue under these laws, however, is limited in significant ways, making it a useful tool but only in limited circumstances. For example, in Estate of Gamma v. Cedar Hill Health Care Ctr. Mr. Gamma’s estate sued Cedar Hill after Mr. Gamma died as a result of falling out of his bed. His estate claimed that Cedar Hill violated New Jersey’s nursing home neglect laws by failing to put bed rails on his bed. The court clarified that an individual can’t recover compensation under these laws when a nursing home fails in its responsibilities; the laws are instead meant for when an individual’s rights have been violated by the nursing home. This can be a tricky concept to manage. But the main idea is that these laws will only apply to certain circumstances.
Another legal option is known as “general negligence.” This basically means the nursing home is responsible because they were careless when they should have been careful. For instance, a nursing home has a responsibility to reasonably care for its residents. When a family member falls because they aren’t being monitored or assisted, the nursing home has probably been careless in a way that makes them negligent.
For your case this all just means you have more than one basis for a lawsuit. Your attorney will investigate the circumstances of your accident and determine which type of lawsuit best suits your specific claim.
How Serious Can a Fall Be?
Slip and fall accidents can be incredibly dangerous, particularly when they involve the elderly. Slip and fall accidents usually involve falling on a hard surface without warning. This means your body is unable to brace itself for impact with the ground, making you more prone to injury. Older people are even more susceptible because of their aging bodies. For them, even relatively minor falls can result in major injuries. Possible injuries include:
- Traumatic brain injury
- Hip fracture
- Back and spine injury
- Cuts and abrasions
- Broken bones
- Sprained ankle or wrist
- Neck injury
- Shoulder injury
It’s important to point out that while many of these injuries are quite serious, you don’t need to have a serious injury to have a successful claim for compensation. You can be compensated for minor injuries too. It’s also important to note that though your injuries might seem minor at first, it is possible for them to develop into more serious conditions over time.
Nursing Home Slip and Fall Accident Statistics
Unfortunately, slip and fall accidents happen all too frequently in nursing homes. This is well documented in the Centers for Disease Control and Prevention’s report entitled “Falls in Nursing Homes.” They found that “between half and three-quarters of nursing home residents fall each year” with many patients suffering more than one fall. The report also emphasizes that these falls are dangerous, claiming the lives of approximately 1,800 nursing home residents each year. Additionally, “about 10% to 20% of nursing home falls cause serious injuries.”
Frequently Asked Questions
When a slip and fall accident results in its victim’s death, the victim’s surviving family members may be able to recover compensation through a wrongful death lawsuit. This lawsuit is usually brought by the victim’s estate. The liability rules are the same as with a personal injury lawsuit; someone’s negligence must have caused your loved one’s accident. But wrongful death lawsuits are more complicated in other ways. You should speak with an attorney who can determine whether your loved one has a viable claim and whether you are eligible to recover.
If you slip and fall in a nursing home while you are working, you may be eligible for worker’s compensation benefits from your employer. This is when your employer has a special insurance policy that compensates employees when they are injured on the job. You might also be able to recover through a personal injury lawsuit, but it’s complicated. You will need an attorney to help you explore your options.
Yes. The law accounts for the victim’s role in their accident in at least two ways. One way is by holding property owners not responsible when a dangerous condition is so obvious that the victim should have noticed and avoided it. Another way is through comparative fault. This is when a court or insurance adjuster determines how much the victim was to blame for their accident and assigns them a percentage of blame. The amount of compensation the victim is awarded is then reduced by this percentage. So, if you are 20% to blame for your accident, the compensation you receive will be reduced by 20%.
The statute of limitations for a personal injury lawsuit is two years after the date of your accident, unless it’s owned by a public entity in which case a Notice of Claim must be filed in 90 days. For a wrongful death lawsuit, you have two years from the date of your loved one’s death. You should see an attorney much sooner, if possible. The longer you wait, the harder it is for an attorney to investigate your claim and evidence can be lost or destroyed.
A good settlement offer depends on the precise circumstances of your accident. Settlements are usually modeled after what a jury would be likely to award if the case went to trial. But there is no law saying parties have to stick to this. An attorney can help you figure out what your claim is worth and what amount it might be worth settling for.
No. There are certain reasons why a nursing home can lawfully evict a resident, such as the nursing home not being able to care for the resident. But a resident taking legal action against them is not included among these acceptable reasons.
Yes. If a public entity is somehow to blame for your accident, you can file a personal injury lawsuit against them. The liability rules are pretty much the same, but there are strict procedural requirements. Specifically, you have to file a document called a Notice of Claim within 90 days of your accident, or your claim will expire.
Who Should You Contact?
When it comes to a slip and fall accident, the fate of your claim for compensation directly affects the well-being of you and your loved ones. To give yourself the best shot at recovering the compensation you are justly owed, hire the attorneys at Rosenblum Law. We have spent decades aggressively advocating for our injured clients, and our work has produced winning results. At Rosenblum Law, we combine legal expertise, courtroom experience, and unrivaled resources to achieve the very best for our clients. E-mail or call 888-815-3649 for a free consultation.
- More on Negligence
- What is Premises Liability?
- Why You Should See a Doctor After a Fall
- Residents’ Rights in New Jersey State Nursing Homes