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• Defining nursing home abuse and neglect
  • Nursing home abuse and neglect laws in New York
  • Nursing Home Oversight in New York
  • Role of the Long Term Care Ombudsman
  • Warning signs of nursing home abuse and neglect
  • Steps to take if you suspect nursing home abuse or neglect in New York
• How to Find an Attorney for a New York Nursing Home Lawsuit
  • Legal fees and expenses for a nursing home lawsuit
  • Choosing the right nursing home abuse or neglect attorney
  • How to prepare for an initial consultation with an attorney
  • Finding a New York nursing home abuse or neglect lawyer near you
• Pursuing an Abuse or Neglect Lawsuit Against a New York Nursing Home
  • Who can file a nursing home lawsuit
  • Identifying defendants in a nursing home abuse or neglect lawsuit
  • Deadlines for filing a nursing home lawsuit in New York
  • The role of insurance companies in a nursing home lawsuit
  • Calculating damages in a nursing home abuse or neglect case
  • Distribution of damages in a nursing home lawsuit
  • Requirements for a successful nursing home abuse or neglect lawsuit
  • Types of evidence in nursing home abuse or neglect lawsuits
  • The impact of “pre-existing conditions” in nursing home lawsuits
  • New York’s “comparative fault” rule in nursing home lawsuits
  • The process of litigating a New York nursing home lawsuit
  • Settling a New York nursing home abuse or neglect lawsuit
• New York Nursing Home Abuse and Neglect FAQs

Defining nursing home abuse and neglect

“Abuse” and “neglect” both can cause serious harm to the victim. As a result, they can both be the basis for an official complaint, lawsuit, and/or criminal charges. While neglect is also considered a form of abuse, the difference is generally in the intent of the actor.

Nursing home abuse more broadly refers to the intentional infliction of harm on a resident. The main types of abuse include:

• Physical abuse, such as hitting, kicking, pushing, slapping, force-feeding, hair pulling, or using unnecessary restraints (whether physical or chemical through medication).

• Emotional, mental, or verbal abuse, such as threatening, harassing, insulting, intimidating, or humiliating the victim. 

• Financial abuse (or exploitation), such as stealing a resident’s money, personal property, or other assets; coercing a resident into transferring assets; or deceiving a resident into transferring assets.

• Sexual abuse, such as unwanted sexual contact or advances, forced nudity, or any other sexual activity without consent.

Nursing home neglect, on the other hand, refers to a failure to meet the health and safety needs of a resident, whether intentionally or otherwise. Examples include the failure to:

• Provide sufficient food and water
• Tend to hygiene needs, including bathing, changing clothing, and maintaining a clean living environment
• Assist with daily activities as needed, such as going to the bathroom or eating
• Keep the facility free of hazards, including those that may cause slip and fall accidents
• Take necessary safety precautions to avoid falls, such as installing bed rails
• Supervise residents prone to wandering off
• Properly administer medications, such as giving the wrong medications or dosage or timing errors
• Properly diagnose, monitor, or treat medical conditions (medical malpractice)
• Check on residents regularly or respond to calls for help
• Safely transport residents (including in and out of beds or bathrooms)
• Ensure nursing home staff members don’t pose a danger to residents by conducting background checks, confirming qualifications, and providing training and oversight
• Provide adequate security to protect against harm by third parties

According to the National Center on Elder Abuse (NCEA), one review of self-reports from residents in institutions revealed that about:

• 33.4% of residents have experienced psychological abuse
• 14.1% have experienced physical abuse
• 13.8% have experienced financial abuse
• 1.9% have experienced sexual abuse
• 11.6% have experienced neglect

Nursing home abuse and neglect laws in New York

Nursing homes in New York are subject to both federal and state laws designed to protect the health and safety of residents. These laws can help establish the specific legal duties and responsibilities of a facility in a lawsuit. As a result, they’re an important part of building a strong nursing home abuse or neglect case.

Federal nursing home laws 

The Nursing Home Reform Act (NHRA) from the Omnibus Budget Reconciliation Act of 1987 (OBRA) is a federal law that was passed to set minimum requirements for the standard of care in nursing homes across the country. Federal regulations and interpretive guidelines based on this law provide further detail about minimum standards. Such standards are called the “OBRA standards.”

Specifically, federal law requires nursing homes to, among other things:

• Respect each resident’s dignity and individuality
• Provide physician supervision for each resident
• Provide 24/7 access to emergency medical care
• Maintain accurate clinical records
• Provide adequate supervision
• Provide equipment to prevent accidents and help any vision or hearing problems
• Provide a choice of activities, schedules, and healthcare 
• Tend to residents’ nutritional needs and monitor proper body weight and fluid levels
• Conduct individual assessments of each resident’s mental and physical condition
• Provide an individual plan of care for each resident
• Provide pharmaceutical services
• Maintain sufficient nursing staff and related services

Federal law also includes specific rights guaranteed to all nursing home residents. These include, among other things, the right to:

• Dignified and respectful treatment
• Participation in activities consistent with their interests
• Freedom from discrimination, abuse, neglect, and exploitation 
• Voice grievances without fear of punishment
• Receive and participate in proper medical care
• Manage their own financial affairs
• Privacy, including with respect to their accommodations, visits, use of electronic devices, communications, and medical records
• Receive or refuse visitors
• Access health, social, legal, and other services

The enforcement of federal nursing home laws is generally left to the states. In particular, state agencies are responsible for conducting unannounced inspections of nursing homes at least every 15 months. The purpose of these visits is to evaluate the standard of care and services and the quality of life of residents.  

Under federal regulations, states are also responsible for investigating nursing home complaints. If an investigation reveals that a nursing home has violated OBRA standards, the facility has to submit a plan of correction and ensure the issue is fixed. 

Depending on the violation, the state may also take other measures, such as:

• taking over management of the nursing home
• closer monitoring of the nursing home
• requiring training for the nursing home’s staff
• imposing monetary penalties
• withholding Medicare or Medicaid payments
• closing the nursing home

New York State nursing home laws

New York state also has its own laws protecting nursing home residents. Many of these are set forth in New York’s Public Health Law (NYSPHL) and are sometimes stricter than those under federal law. For example:

• Under NYSPHL Sec. 2899-A, New York nursing homes must conduct background checks of staff and, to the extent allowed under law, request a sworn statement from prospective employees disclosing any prior resident abuse or criminal convictions.

• Under NYSPHL Sec. 2895-B, New York nursing homes must meet minimum staffing levels, including average staffing hours of at least 3.5 hours of care per resident per day.

• Under NYSPHL Sec. 2828, New York nursing homes must spend at least 70% of revenue on direct resident care, of which 40% must be spent on resident-facing staffing.

NYSPHL Sec. 2895-B also lists certain rights guaranteed to residents, many of which overlap with federal rights. Under this law, residents have the right to, among other things:

• Exercise civil and religious liberties
• Private communications with their doctor, attorney, or any other person
• Voice complaints without fear of reprisal
• Manage their own financial affairs
• Receive adequate medical care and participate in medical decisions
• Privacy, confidentiality, and security
• Courteous, fair, and respectful care and treatment 
• Freedom from mental and physical abuse
• Get a statement of the nursing home’s regulations
• Get kosher or halal food upon request 

Facilities are required to prepare a written plan for ensuring these rights are respected. They’re also required to provide appropriate staff training regarding these rights.

If a resident is harmed by a violation of any of these rights, NYSPHL Sec. 2801-D provides a private cause of action. This means you can file a legal claim based upon the violation. Any such claim would be in addition to any ordinary negligence or medical malpractice claims based on the same circumstances. 

• For example, in Maltese-Kojallo v. Fairview Nursing Home the plaintiff alleged her mother developed avoidable bed sores and didn’t receive proper nutrition and hydration while in a nursing home’s care. The resident ultimately died. The plaintiff then sued for negligence, violation of the Public Health Law, wrongful death, and gross negligence. The defendant nursing home filed a motion to dismiss all claims.

The court allowed the negligence, Public Health Law, and wrongful death claims to proceed, even though they were all based on the same facts. Only the gross negligence claim was dismissed because the plaintiff didn’t submit sufficient evidence. 

Nursing Home Oversight in New York

In New York, all complaints about nursing homes go through the NYSDOH’s Centralized Complaint Intake Unit. The department is responsible for reviewing all complaints. When the department receives a complaint, it will first determine if an investigation is needed. If so, the department will conduct interviews with the resident, their loved ones, and staff, as appropriate. It will also review any other evidence, such as the resident’s records and other nursing home documentation. The department may perform onsite inspections as well. 

If the NYSDOH finds any violations of federal or state law, it will issue a citation. The nursing home will then have to submit a plan of correction. The NYSDOH has the power to take other enforcement actions as well, such as remedies listed above under Federal nursing home laws.

Enforcement actions by the NYSDOH are important because they can help protect all residents in a nursing home. But a violation may also form the basis for a private lawsuit. A lawsuit can provide compensation for an individual victim’s losses and encourage institutional change. In some circumstances, criminal charges are appropriate as well, which can help hold perpetrators further accountable for any criminal behavior. 

To help residents and their families better understand the quality of a nursing home, the U.S. Centers for Medicare and Medicaid Services has also implemented a 5-star rating system. These ratings take into account health inspections, staffing, and quality of resident care — including the facility’s recent history of complaints and violations. Currently, there are about 200 federally certified New York nursing homes with an overall rating of “below average” or “much below average.”

Role of the Long Term Care Ombudsman

Although the NYSDOH is the primary oversight entity in New York, the state also has a Long Term Care Ombudsman. The Ombudsman’s Office doesn’t have enforcement powers. But it does serve as an advocate and resource for nursing home residents and their families. In particular, the Ombudsman can: 

• Help ensure resident rights are respected by identifying, investigating, and trying to resolve resident complaints
• Mediate among residents, family members, and nursing home staff
• Provide education for residents and family members about any issues they may be experiencing
• Refer complaints to the NYSDOH or another appropriate agency for further action

But even in cases of alleged abuse or neglect, the only goal of the Ombudsman is to resolve complaints to the resident’s satisfaction. This means the Ombudsman is not responsible for gathering evidence or verifying allegations of abuse or neglect. Unlike other agencies, the Ombudsman is not required to report alleged abuse, neglect, or exploitation. 

The Ombudsman also will not take any steps without the resident’s consent. If someone other than the resident files a complaint, the Ombudsman will have to confirm whether the resident wants to pursue the complaint. 

If the resident wants the Ombudsman to proceed, they’ll investigate and communicate with the resident throughout the process. If the resident is incapable of giving consent, the Ombudsman will work with the resident’s representative or follow program procedures.

Warning signs of nursing home abuse and neglect

According to the NCEA, at least one in 10 adults experienced elder abuse in the prior year. But due to underreporting, many cases go unnoticed and unreported. The actual prevalence of abuse is likely even higher. By some estimates, for every reported case of abuse, 24 go unreported. Studies suggest the rate of abuse or neglect is likely similar in nursing homes. 

Although abuse and neglect is a widespread problem, many residents are unable or unwilling to speak up about mistreatment. This may be due to:

• Physical or cognitive impairments
• Fear of retaliation
• Shame or embarrassment
• Pervasive mistreatment becoming “normalized”

As a result, it’s important for the loved ones of residents to remain vigilant for signs of elder abuse or neglect. Sometimes abuse and neglect is obvious. But other times, the signs are very subtle. Common warning signs include:

• Dehydration, malnutrition, or rapid weight loss
• Infections or pressure ulcers (bedsores)
• Unsanitary living conditions, including unchanged bedding and an unclean living area
• Poor hygiene, including lack of bathing or soiled clothing 
• Unexplained injuries, such as cuts, bruises, bleeding, burns, sprains, or broken bones
• Sudden and unexplained changes in behavior or emotional state, such as becoming depressed, withdrawn, agitated, or non-communicative
• Unexplained lethargy, confusion, or excessive sleeping, indicating overmedication
• Reports of being confined or restrained 
• Discomfort, fear, or reluctance to speak in front of nursing home staff or other residents
• Frequent arguments, conflicts, or tense interactions between the resident and caregivers
• STDs or genital infection, bruising, or other injury
• Unexplained bank transfers, credit card purchases, or cash withdrawals
• Changes in wills, powers of attorney, insurance policies, property titles, or other financial property or talk of making such changes
• Understaffing or poorly trained staff
• Staff turning away or delaying visitors
• Unexpected, unexplained death

Steps to take if you suspect nursing home abuse or neglect in New York

Under the Patient Abuse Reporting Law, nursing home staff and licensed professionals are required to report abuse or neglect. Failure to report can result in sanctions.

Still, many cases of abuse or neglect go unnoticed. So if you suspect your loved one has been abused or neglected, it’s best to be proactive. This can help protect not only your loved one, but other residents as well. Here are a few steps you should take as soon as possible:

How to Find an Attorney for a New York Nursing Home Lawsuit

As noted in the previous chapter, if you suspect nursing home abuse or neglect, consulting an experienced personal injury lawyer should be a top priority. Getting the help of a lawyer early on will greatly increase your chances of a successful claim. This is because an experienced attorney will:

• thoroughly investigate the circumstances and gather evidence
• identify your options, devise a legal strategy, and guide you through the legal process 
• identify the appropriate defendants
• find out if the facility has a history of complaints or violations
• communicate with all other parties, including the defendant’s lawyers and insurer
• engage and work with experts to prove your claims
• conduct witness interviews
• determine the types and amounts of compensation to seek
• prepare and file all paperwork with the court and attend hearings 
• advocate for the victim’s interests in negotiations and court
• take the case to trial, if needed

If your loved one is able, they’ll serve as the plaintiff and work with the attorney throughout the process. But often, victims of elder abuse are not able to pursue a lawsuit directly due to physical or cognitive impairments. In that case, a representative can be appointed to sue on the victim’s behalf. This representative is usually a close family member. (See Chapter 3: Pursuing an Abuse or Neglect Lawsuit Against a New York Nursing Home — Who can file a nursing home lawsuit.)

Legal fees and expenses for a nursing home lawsuit

When considering hiring a lawyer, attorneys’ fees are often a concern. But keep in mind that personal injury lawyers typically offer an initial consultation free of charge. And if they accept your case, they’ll usually work on a contingency fee basis.

When a lawyer works on contingency, you don’t pay their fees upfront. Instead, the lawyer will only get paid if they win a settlement or trial award for you. Their payment will be a percentage of the award. If you win the case, the court may even order the defendant to pay your legal fees. If an attorney working on contingency doesn’t win any money for you, they won’t get paid. 

Note that there are also other expenses involved in pursuing a lawsuit. Examples include the costs for engaging experts, copying records, or holding depositions. Personal injury lawyers usually advance such expenses as well. Like attorneys’ fees, these expenses are then reimbursed from any award they win for you.

Free initial consultations and contingency fee arrangements are designed to make it easier for victims to pursue justice. Since the financial barrier to filing a personal injury lawsuit is low, there’s very little risk in at least talking to a lawyer. In fact, the real risk is in waiting too long. If you delay, you may miss legal deadlines, lose critical evidence, or make mistakes that hurt your case.

Choosing the right nursing home abuse or neglect attorney

A good attorney can be the difference between losing and winning a lawsuit. So you should choose your lawyer carefully. 

The most important thing to look for is someone who’s familiar with nursing home laws, both on the state and federal level. They should also have a strong track record with similar lawsuits. 

An experienced, knowledgeable attorney will be better able to handle complex legal issues, gather the right evidence, and devise a strong legal strategy. During your consultation, you can and should ask questions about your attorney’s experience. 

It’s also important to pick an attorney with enough resources to support your case through the entire legal process. Lawsuits are expensive and can sometimes take years to resolve. And as noted above, your attorney will likely be responsible for advancing all costs. So during your initial consultation, it’s a good idea to ask about the lawyer’s resources as well. 

Lastly, you should choose a lawyer who makes you feel comfortable. That typically means picking a lawyer who’s attentive and takes the time to answer questions and explain the process. After all, pursuing a lawsuit can be a long and stressful experience. So the lawyer you choose should be someone you trust. To learn more about how to choose an attorney, click here.

How to prepare for an initial consultation with an attorney 

The first step in hiring a lawyer is the initial consultation. This is when you’ll explain your circumstances to the lawyer. They’ll ask you questions to help them determine if they can help you. And you’ll also have the chance to ask them questions to see if they’re a good fit for you.

To get the most out of your initial consultation, you should be prepared to explain why you suspect abuse or neglect. It’s helpful to bring any support you already have for your claims, such as:

• A written statement from you and/or the victim 
• Photos or videos of injuries or the victim’s living conditions
• Any other available documents or evidence

Based on your conversations and available evidence, the attorney will decide if there’s sufficient grounds to pursue the claim further. But even if you don’t have a lot of evidence, you should still consult an attorney as soon as possible. If a lawyer accepts your case, they’ll conduct further investigations and help gather appropriate evidence. 

Finding a New York nursing home abuse or neglect lawyer near you

At Rosenblum Law, we understand the devastating impact nursing home abuse and neglect can have on a resident’s physical, mental, and financial wellbeing. If we’re able to pursue your case, we’ll fight for justice on behalf of your loved one and do everything we can to hold the perpetrators accountable.

If we aren’t the right law firm for you, we’ll also try to refer you to another qualified law firm. Our network includes many other prescreened law firms prepared to take on nursing home lawsuits.  

To schedule your free initial consultation, call us today at 888-235-9021 or contact us online at www.rosenblumlaw.com/contact. Providing effective, compassionate representation is our top priority — and since we work on contingency, you won’t have to pay any attorneys’ fees unless we win money for you.

Pursuing an Abuse or Neglect Lawsuit Against a New York Nursing Home

While filing an official complaint with the NYSDOH is important, a private lawsuit is still usually the best way to get justice for an individual victim. Legal action can put a stop to mistreatment a lot more quickly. And lawsuit damages are also often necessary to compensate a victim for their losses, such as medical bills and pain and suffering. 

This chapter will give you an overview of what to expect if you decide to pursue a lawsuit. But keep in mind that lawsuits require a thorough understanding of all relevant laws. They also involve complicated rules and procedures. 

Without the right experience, it’s easy to make mistakes that harm your ability to recover compensation. This is especially true when facing a corporation, as they often have aggressive lawyers and insurers on their side. 

To increase your chances of a successful outcome, you should get the help of an experienced nursing home abuse or neglect lawyer. Your attorney will manage the entire legal process and handle all communications with the defendant’s lawyers and insurer. This will help ensure that your loved one has a fair chance at getting the compensation they’re owed. 

Who can file a nursing home lawsuit

Generally, only the party who has experienced harm can file a lawsuit. This is called having “legal standing.” In a nursing home abuse or neglect lawsuit, this means that the resident would serve as the plaintiff. But often, nursing home residents lack the mental or physical capacity to pursue a lawsuit on their own. 

If a victim isn’t able to pursue a lawsuit directly, a legal representative can be appointed to pursue claims on the victim’s behalf. Usually this representative is a close family member. But even with a representative, any lawsuit damages for the resident’s injuries would still go to the resident.

If a resident dies before filing a personal injury lawsuit, the representative of the victim’s estate can still file a lawsuit for the victim’s losses. This is called a “survival action.” Any damages from a survival action go to the victim’s estate and distributed according to the victim’s will. If the victim didn’t leave a will, the damages are distributed according to New York intestacy laws.   

If abuse or neglect injuries caused the victim’s death, the representative may also be able to file a wrongful death action on behalf of certain family members (generally the spouse and/or children). A wrongful death action can help those family members get compensation for their monetary losses relating to the victim’s death. Usually, a survival action and wrongful death action are joined together as a single wrongful death lawsuit. 

Identifying defendants in a nursing home abuse or neglect lawsuit

Before you can file a lawsuit, you’ll have to identify who’s legally responsible for the victim’s injuries. This may include more than one party. Often, the nursing home will be a defendant, especially in cases where the harm resulted from:

• Insufficient training and/or supervision of employees
• Lack of appropriate policies and procedures
• Understaffing, leading to overworked employees and substandard care
• Bad hiring practices, such as hiring staff without proper experience, training, or skills or hiring staff with a history of abuse or neglect

But depending on the circumstances, other third parties may be named as defendants as well. Examples include:

• Doctors, nurses, or other healthcare staff
• Caretakers or other staff members
• Other facilities involved in the victim’s care, such as hospitals
• Third party vendors or care providers contracted by the nursing home
• Custodians or maintenance staff if they neglected to keep the facility safe
• Manufacturers of defective equipment
• Trespassers in the nursing home 

Your attorney will help identify the appropriate defendants in your case.

Deadlines for filing a nursing home lawsuit in New York

For most types of lawsuits, there’s a legal deadline for filing, otherwise known as the “statute of limitations.” 

New York’s statute of limitations for personal injury lawsuits is set forth in New York Civil Practice Law & Rules (NYCPLR) Sec. 214. This law generally gives you three years from the date of injury to file a lawsuit.

Three years may seem like a long time. But it’s important to start your case as quickly as possible. This is true for a few reasons. 

First, you may have to meet shorter deadlines. For example:

• Under NYCPLR Sec. 215, you generally only have one year to file a lawsuit for assault or battery.
• Under NYCPLR Sec. 214-A, you generally only have two and a half years to file a medical malpractice lawsuit.
• Under New York’s Estates, Powers & Trusts Law Sec. 5-4.1, you generally only have two years from the date of death to file a wrongful death lawsuit. 

If government defendants are involved (such as any of the state-operated Veterans’ Nursing Homes), you also have to follow special procedures under New York General Municipal Law Sec. 50-E and NYCPLR Sec. 217-A. Specifically, you have to submit a notice of claim within 90 days of injury and file the lawsuit within one and a half years. 

Second, the longer you wait, the more likely it is that evidence will be lost or destroyed. It will also be harder to locate and interview witnesses. Some of this evidence may be critical to the outcome of your case. Without it, you may recover significantly less in damages — or none at all. 

Finally, the more time you have to find the right attorney and file a lawsuit, the better. Hiring a lawyer is an important decision. You shouldn’t feel pressured into engaging a lawyer just because a deadline is fast-approaching. And even good lawyers need as much time as possible to investigate, gather evidence, and devise a strong legal strategy. If you wait until the last minute, your case may not be as strong as it could have been with more time to prepare. 

Note that if you miss the deadline that applies to a claim, the court may throw it out and you’ll no longer be able to get compensation for it. 

For example, in Rey v. Park View Nursing Home, a nursing home resident died after a fall. The ensuing lawsuit included multiple claims, one of which was against a doctor who evaluated the resident upon her arrival at the home. 

The plaintiff alleged that the doctor failed to properly assess the resident’s condition, review her medical records, and give proper instructions as to her care. The court found that this was a medical malpractice claim, and because more than two and a half years had passed, it was barred by the statute of limitations. As a result, the claim was properly dismissed.

Although being mindful of filing deadlines is important, it’s not always easy to determine on your own which one applies to your case, or if any exceptions apply. So even if you think too much time has passed, you should still consult a lawyer. Your lawyer will be able to confirm which deadlines apply to your case.

The role of insurance companies in a nursing home lawsuit

Nursing homes usually have liability insurance to help cover legal claims. So if you file a claim, the insurer may try to contact you on behalf of the nursing home about your lawsuit. If this happens, you should decline to talk to them. Instead, refer them to your attorney.

Insurance companies are for-profit, so their top priority is protecting their bottom line. No matter how friendly or sympathetic the insurance adjuster may seem, they are not looking out for the best interests of you or your loved one.

In fact, they may even try to deceive you into giving them information that may damage your case. They’ll also often try to take advantage of your inexperience to deny claims or make extremely low settlement offers.

By having your attorney talk to insurers and all other third parties on your behalf, you’ll be better able to avoid harmful mistakes. Your attorney will advocate for your loved one’s best interests and help make sure the insurer doesn’t take advantage of you.

Note that you should also never sign anything before consulting an attorney. Medical releases, settlement offers, and other legal documents can have a big impact on your case and your ability to recover compensation.

Calculating damages in a nursing home abuse or neglect case

The nature of the victim’s injuries and the strength of the evidence are two key factors in calculating damages in a lawsuit. But no two cases are exactly alike. That means the money available in a nursing home lawsuit (called the “damages”) will also vary from case to case. 

Generally, however, there are three types of damages available in a nursing home abuse or neglect lawsuit:

• Economic damages. Economic damages refer to compensation paid for the victim’s monetary losses. In a nursing home lawsuit, such damages may include past, present, and future medical expenses, the cost of moving to a new facility, restitution for financial exploitation, and other out-of-pocket expenses. 

• Non-economic damages. Non-economic damages refer to compensation paid for the victim’s non-monetary losses. Examples of these damages include pain and suffering, emotional distress, disfigurement, disability, and more. Because of their subjective nature, non-economic damages are often more difficult to calculate. 

• Punitive damages. Unlike the damages described above, punitive damages are not intended to compensate a victim. Instead, they’re awarded when the court believes they’re necessary to punish especially egregious behavior by the defendant and deter such behavior in the future.

Your attorney will review all available evidence and work with medical and financial experts to determine the types and amounts of damages to pursue. After filing the lawsuit, your attorney will then negotiate with the defense to try to reach an acceptable settlement agreement. If a settlement agreement is reached, it will determine the final amount of damages.

While many cases do settle, sometimes it’s not possible to reach a mutually acceptable agreement. If that happens in your case, the case will go to trial and the judge or jury will determine the final damages. (See New York nursing home lawsuit settlements below.)

Distribution of damages in a nursing home lawsuit

If the victim is living, any damages awarded in a settlement or trial verdict will be paid to them. This is true even if a representative pursues the case on the victim’s behalf.

If the victim is no longer living at the time of the lawsuit, any damages for the victim’s losses will be paid to the victim’s estate. The estate will then distribute the damages according to the victim’s will. If the victim didn’t leave a will, New York’s intestacy laws will determine how the damages will be distributed (usually to the spouse and/or children). 

If the victim died as a result of abuse or neglect, certain family members may also be able to file a wrongful death action for their monetary losses related to their loved one’s death. Any damages recovered in a wrongful death action will go to those family members. 

Note that sometimes liens are put on lawsuit awards as well, which can reduce the award amount. A “lien” is when a third party asserts a legal right to take money from the award. 

For example, if Medicare or Medicaid previously paid for medical costs related to the abuse or neglect, Medicare or Medicaid liens may be placed on the award. That means money will be taken from any award of economic damages to reimburse those costs. Your lawyer should review any liens and confirm that they’re legitimate. 

Elements of a successful nursing home abuse or neglect lawsuit

Winning a nursing home abuse or neglect case in New York generally involves proving four elements: 

• Duty. First, you have to prove that the defendant owed a “duty of care” to the victim. A nursing home has the duty to act with reasonable care towards its residents under the circumstances. This includes tending to medical needs, providing adequate food and hydration, and keeping the resident safe and healthy. Federal and state law can be helpful in establishing the specifics of this duty.

• Breach. Second, you have to prove that the defendant violated (or breached) its duty of care to the victim through negligence or an intentional act. “Negligence” refers to the failure to act with reasonable care under the circumstances. 

• Causation. Third, you have to prove that the defendant’s breach of its duty of care caused the victim’s injuries. This can be difficult in some nursing home cases, as the victim may have pre-existing medical conditions. A medical expert will usually need to review the case and testify about causation (among other things).

• Damages. Fourth, you have to prove the amount of losses (called “damages”) that resulted from the injuries. Damages may be economic, such as medical bills, or non-economic, such as pain and suffering. Your lawyer will work with experts to calculate your damages. Courts will also sometimes award punitive damages in certain cases. (See the section above titled Calculating damages in a nursing home abuse or neglect case.)

If even just one element above is missing, you won’t win a case. For example, in Burns v. Rockville Skilled Nursing & Rehabilitation Center, the plaintiff filed a motion for the court to decide in her favor without a full trial (called “summary judgment”). The plaintiff, the executor of the resident’s estate, alleged that the defendant violated the resident’s right to complete and accurate medical records. 

The nursing home’s director of nursing admitted that the resident’s records showed care entries for when he was not present at the facility. She also admitted entries were not made when he was present. Still, the court found that even if the resident’s right to complete records had been violated, the plaintiff did not establish any injury from the violation. In other words, she did not satisfy the “causation” and “damages” elements. As a result, the court denied the motion for summary judgment.

As this case shows, the judge or jury will evaluate the evidence and decide if you’ve sufficiently proved each of the elements above. If you don’t meet certain requirements, the court may throw out your case. These elements, and the strength of the evidence supporting them, will also affect settlement negotiations. 

Types of evidence in nursing home abuse or neglect lawsuits

To successfully prove each of the elements described in the section above, you and your attorney will need to gather as much strong evidence as possible. The types of evidence will depend on the circumstances. Common examples include:

• Medical records, including evaluations, treatments, medications, and lab results
• Nursing home charts, including intake records, care plans, assessments, caregiver and physician notes, and other information 
• Nursing home employee records and staff log
• Records of state inspections, complaints, and the facility’s compliance history
• Documentation of the facility’s policies, procedures, and resource allocations
• Photos and/or video of your loved one’s injuries, their living conditions, and other physical evidence
• Statements from the resident and witnesses (such as family members, staff, other residents, and visitors)
• Any police or incident reports
• Any security footage of the incident
• Maintenance records
• Evidence of the financial impact on the resident, such as bills, invoices, and other costs
• Evidence of non-economic losses, such as medical assessments and psychological evaluations

Quickly gathering evidence is key to a successful case. The more time passes, the higher the chances that valuable evidence will be lost or destroyed. With time, it also becomes harder to find willing witnesses who can still remember key details. This is yet another reason why engaging an attorney early on is so important. Your attorney will be able to help identify and gather the right evidence before it’s too late. 

Your attorney will also engage experts to support your claims. You’ll likely need medical and nursing experts to testify about the standard of care and the impact of your loved one’s injuries. An expert in psychology can testify about any mental or emotional impact of elder abuse or neglect. And financial experts can help calculate an appropriate amount of damages. 

Given the central role of experts in nursing home lawsuits, it’s best to choose an attorney with connections to high quality experts. The judge and jury will give more weight to the testimony of experts who have the right expertise and credentials. These experts will play a role from the very beginning of your case.

For example, in Peters v. Nesconset Center for Nursing & Rehabilitation, the plaintiff (executrix of the victim’s estate) alleged that the victim died as a result of the nursing home’s negligent care. The defendants filed a motion to throw the case out, which was supported by affidavits from a doctor and registered nurse. 

However, the plaintiff also submitted an expert affidavit from a doctor who supported their claim. This affidavit included sufficient detail to call into question whether the defendants were negligent. As a result, the court let the claim proceed.

The impact of “pre-existing conditions” in nursing home lawsuits

Many nursing home residents suffer from various existing health complications. And it’s not unusual for the elderly to be more prone to injury in daily life. This can impact a nursing home lawsuit, as defendants may claim that the victim’s injuries were pre-existing, or that a pre-existing health condition caused the victim’s injury. 

While being aware of this possibility is important, pre-existing health issues do not mean you can’t win a case. In fact, if a defendant’s actions somehow made a condition worse, they are still responsible for the additional harm. This is why it’s important to get the help of an experienced lawyer. Your lawyer will help gather the right evidence and work with experts to build the strongest case possible. 

New York’s “comparative fault” rule in nursing home lawsuits 

In New York, courts apply the “comparative fault” rule when more than one party is found at fault. Under this rule, fault can be divided among multiple defendants. The plaintiff can also be found partially at fault.  

If the plaintiff is partially at fault, then damages will be reduced in proportion to their percentage of fault. For example, if a nursing home neglect victim suffered $100,000 in damages, and they were 25% at fault, their award would only be $75,000. This decision is usually made by the jury, though this rule can also affect settlement negotiations. 

Because this rule can help reduce a defendant’s liabilities, it’s a common defense in personal injury lawsuits. This is another factor that you should be prepared for, but assigning fault is not an exact science. Even if a victim was partially at fault for their injuries, they can often still recover some compensation. So instead of making any assumptions, consult a lawyer. Your lawyer will work with experts to determine how fault should be fairly allocated.

The process of litigating a New York nursing home lawsuit

If you’ve never been involved in a lawsuit, the process can seem intimidating. This is understandable — there are many complicated rules and procedures to follow. But a good attorney will guide you through every step and manage the entire process, making it a lot less stressful. 

To officially start the lawsuit, your attorney will prepare and file a summons and complaint with the court. The defendant will have the chance to respond. The case will then go through a period of discovery so both sides can investigate and discover as much information as possible. 

During this time, both sides may also negotiate to try to settle the case ahead of trial. But if that’s not possible, the case will proceed to trial. A more detailed summary of the litigation process can be found here. 

Every case is different, so the time it takes to conclude each case is also different. If a case goes all the way through trial, reaching a final verdict could take years. But cases can also be resolved much sooner, especially if you reach a settlement as described in the section below. 

If you’re worried about what to expect in your case, you should discuss the process with your attorney. Your attorney should help you prepare for each stage of the process and guide you through all necessary decisions. 

Settling a New York nursing home abuse or neglect lawsuit

Many cases never reach a trial verdict. Instead, they’re resolved out of court by reaching what’s called a “settlement agreement.” Both sides of a lawsuit generally prefer to reach a fair settlement as soon as possible. This is because going through the entire litigation process is time-consuming, expensive, and the outcome is never guaranteed. 

Settlement negotiations will often start early on in a dispute. But it’s possible to reach a settlement any time before a verdict is reached in court. Both sides can negotiate directly. Or sometimes, they agree to a process called mediation. Mediation involves a neutral third party, called a “mediator,” who helps the parties reach an agreement. 

Regardless of whether the parties are negotiating directly or participating in mediation, reaching a mutually satisfactory settlement is not easy. Plaintiffs naturally want to seek maximum compensation for their losses. But defendants and their insurers will want to pay out as little as possible. As a result, it’s common for defendants to offer unfairly low offers. This is especially true early on in the process. 

You should never accept a settlement offer or sign any documents without first consulting your lawyer. Once you accept an offer, the case will be considered resolved and you’ll no longer be able to pursue your claim in court. Your attorney will be able to evaluate the fairness of each offer and help you decide whether to accept it. Further information about settlements can be found here.

New York Nursing Home Abuse and Neglect FAQs

Below are general answers to some common questions about nursing home lawsuits in New York. But keep in mind that every case is unique. If you’re thinking about pursuing a lawsuit, you should consult with an experienced New York attorney as soon as possible. Your attorney will be able to discuss your specific case and answer any questions you may have.

To schedule your free initial consultation, call us today at 888-235-9021 or contact us online at www.rosenblumlaw.com/contact. Providing effective, compassionate representation is our top priority — and since we work on contingency, you won’t have to pay any attorneys’ fees unless we win money for you.