THE LEGAL PROCESS – A SHORT SUMMARY OF THE LIFE OF A LAWSUIT

Presumably you have found your way to this page because you or a family member have questions or a problem with a nursing home or assisted living facility, or a provider who cares for the elderly. If so, we may be able to help.

Our firm has actively litigated long term care cases since the mid-1990s. To date, we have handled approximately 150 long term care or nursing home cases. Some of these have been suing a nursing home, others defending nursing facilities. About 10% of these cases go to court or are arbitrated.

Our cases have been very diverse regarding issues in nursing homes involving:
– falls
– medication errors
– pressure sores and decubitus ulcers
– dehydration and malnutrition
– wandering and elopement
– injuries from unsafe premises
– deaths from restraints
– drowning in the bathtub
– choking deaths from improper food
– physical abuse by staff
– resident to resident violence
– rape
– and even murder

Other issues that occur in nursing homes include:
– over-medicating
– sexual and psychological abuse
– poor hygiene resulting in serious illness or injury
– improper wound care

We may be able to assist you with issues peculiar to the elderly, such as Medicare, Medicaid and health plan liens, and in some cases the advisability of calling in a specialist to set up a special needs trust to preserve eligibility for benefits. In cases where your family member is deceased, we may be able assist you in opening an estate and avoiding some of the common pitfalls in this process. If you need assistance probating an estate, we are happy to refer you to specialists in this area as well.

Here, in a nutshell, is the general process you may expect, broken down in steps (please click on a step to expand it):

This call will likely be fairly brief, but is nonetheless important in that it gives you the opportunity to explain what the case is about and for the attorney to broadly identify likely strengths and problematic issues.  Our office will set up an appointment at this time and may request that you forward all or portions of your file so that we have read it prior to your meeting and do preliminary research as necessary.   There is no charge for the initial call.

Please plan to set aside at least an hour and possibly two hours for this meeting.  There will be an intensive interview to determine the facts of your case and the witnesses and sources of proof needed for additional investigation to determine whether you have a case.  Additionally, we may request medical records releases so that we may obtain medical records from nursing homes, hospitals and doctors.

Generally a fee arrangement is discussed at this meeting and you will be offered a choice of an hourly rate versus a contingency arrangement.  Unless the case is expected to settle quickly, most clients choose the contingency. This means that you are not responsible for attorney’s fees unless and until we recover money on your behalf. Typically the contingency fee is one third if the case is settled prior to trial, 40% if the case proceeds to trial. However, ethically we cannot pay your costs and expenses and you must remain responsible for them. For example, the client must pay the expert for the expert’s review of the case.  The rest of the fee arrangement is always negotiable and will be put in writing for you to review and we will happily answer any questions you may have.

Because nursing homes and their nurses and doctors are covered under Virginia’s Medical Malpractice Act, Virginia law requires that a claimant obtain expert review certifying the merit of the case.  Though there are exceptions, in practice this means that both a nurse and doctor must review the nursing home chart and hospital records to determine whether there has been a breach in the nursing/nursing home standard of care and whether this breach was the actual cause of harm or death to the resident.  The reviewing experts must certify this in writing; it is likely the court will dismiss the case or impose a monetary penalty if this essential step were omitted prior to serving a suit.

Following our investigation and generally after at least some expert review, we will prepare a demand letter directed to the nursing home and its lawyers giving notice of your claim and explaining why we believe you have a case.  Generally the defendants will request time to perform their own investigation and have an expert review before responding.  If the defendants wish to settle at an early stage, it is not unusual for the case to go to a mediator to facilitate and expedite negotiations.  Much of the time, however, defendants decline to pay without a fight and the case must proceed to litigation.

It is not at all unusual for nursing home resident agreements to contain an arbitration provision. Arbitration means the case will be decided by an arbiter (usually a retired judge) instead of a jury.  This is not necessarily a bad thing: assuming you are able to approve the arbiter, our experience is that plaintiffs receive fair trials and better than fair awards from arbitration. This arbitration process is simplified, cheaper, and expedited.  However, if the agreement is not fair, we will resist arbitration on your behalf.

A lawsuit is commenced by filing a complaint in court and having it served on the defendants.  Once served, the defendants must respond within twenty-one days. Typically the response will be a plea raising statute of limitations or arbitration, or a demurrer saying that a viable case has not been pled, or an answer addressing the merits of the claim – sometimes all of the above. Once the pleadings are completed, the court may set the case for trial, usually within a year of the scheduling conference.

After suit is filed, both sides have the opportunity to serve written discovery upon each other.  Typically this include interrogatories, written questions which must be answered under oath, document requests or subpoenas for medical records and correspondence, and requests for admission seeking stipulations of agreed facts.  Other forms of discovery include formal requests to inspect the facility.   A defendant may request to have the patient submit to “an independent medical examination” by a doctor of defendant’s choosing; such examinations are not always “independent” and are absolutely not intended to benefit the patient.

A deposition is an interview of a witness to take the witness’ testimony under oath.  The witness is sworn by a court reporter, who records the lawyer’s questions and witness’ answers verbatim; the court reporter will upon request produce a copy of the transcript for the witness to review.  The purpose of the deposition is for the lawyers to gauge the strengths and weaknesses of the witness, find out more about the case, to provide information for the experts to use in forming their opinions, and ultimately may be used to injure the witness’ credibility at trial if there is conflicting information.

Prior to the trial date, usually at the 90 day mark for the plaintiff and at 60 days for the defendant, the parties must disclose the identities of their expert witnesses and the substance of their opinions to be expressed at trial.  Experts will typically have their depositions taken following disclosure.

In our experience, typically there are not serious settlement negotiations until after each side has disclosed their experts.  At this point the parties may request a settlement conference with the court or schedule mediation with a mediator.

Witnesses will be encouraged to review their depositions and relevant documents so that they are prepared to answer questions at trial.  We will want to meet with you and other witnesses for trial preparation.  Please anticipate that this may take an appreciable amount of time in some cases.

Trials may be either a trial before a judge or a trial before a jury. At trial, the Plaintiff’s lawyer puts on the the evidence and witnesses that support the Plaintiff’s case. In response the Defendant can put on his own evidence and witnesses to contradict the Plaintiff, reduce the amount of damage claimed, or otherwise support the Defendant’s best position. After all testimony is heard and all evidence presented, the case is left to the jury to decide.

If either side does not think the verdict was correct because of some error, post-trial motions are made to the judge seeking to correct the error short of appeal.  Sometimes the judge will set aside the verdict and order a new trial based on these motions.

Appeals are rarely accepted in Virginia and are certainly no guarantee of reversing an unsatisfactory result. Nonetheless, if we feel strongly that the trial was unfair or that the verdict resulted from an error of law, we may urge you to appeal your case.

301 North Fairfax Street, Suite 207, Alexandria, Virginia 22314 | Please call or e-mail to schedule a consultation | Phone: (703) 739-4200