It is always difficult to tell a family that I am unable to represent them regarding the loss or severe injury of their loved one in a nursing home.
However, arriving at the right decision as to whether to accept a nursing home neglect and abuse case is the foundation of a nursing home practice.
Difficult decisions are made at the junction where emotion and intellect intersect.
Emotion is the first to weigh in when a death or life changing event is presented to me for review. It is difficult not to become incensed at the poor care given to our most vulnerable patients or to become attached to a family that has lost a loved one.
Since intellect, in the form of practical considerations, are slow to appear, caution in the decision process is well advised.
Nursing home, assisted living, and group home cases are expensive, labor intensive and emotionally draining for an attorney. They are also difficult for families because they take a long time to resolve and therefore there is delayed closure of the emotional wound.
The first consideration is whether the neglect or abuse resulted in significant injury or death.
The second consideration is whether the injury or death was the result of neglect or abuse.
Having said that, my analysis as to whether to move forward is based on a broad view of the nursing home (including both the specific facility and the parent organization).
I examine the history of the nursing home to determine whether they have had similar problems in the delivery of patient care. Have they learned from their prior mistakes or are they continuing with the same conduct?
I determine whether the harm was the result of a systemic failure such as inadequate staffing, training or oversight. These systemic failures are evidence that the facility was incapable of providing quality care.
I then determine whether the systemic failures were the result of corporate business decisions. In other words, did the nursing home corporation decide to place profits over quality patient care and did that decision lead to the injury or death?
The answer to this question will determine whether the facility’s conduct warrants an award of punitive damages. Punitive damages are assessed against a facility to punish it for outrageous conduct.
Going through these considerations in the case selection process enables me to decide whether to accept or reject a nursing home case. However, it doesn’t make it any easier to tell a family that I am unable to help them.
