Anticipating and Meeting Defenses in Nursing Home Elder Abuse Cases

Defense that “injuries are due to a doctor not associated with the nursing home”

In a nursing home elder abuse case, the plaintiff’s attorney must decide whether to name the nursing home as the only defendant, or to also name as co-defendants any physicians not employed by the nursing home who may have treated the plaintiff resident. If the facts reveal that the nursing home is clearly responsible, it is strategically preferable if the case is directed against the nursing home only. That is because having only one defendant will focus the litigation on the defendant’s wrongful acts or omissions, and on the injuries to the plaintiff resident.

However, a strategy of naming the nursing home as the only defendant, and not naming the outside doctors, is not without risk. One of the most significant risks is that the nursing home and its employees may blame the outside doctors for the injuries or the wrongful death of the resident.

This potential defense can arise in many different ways. For instance:

  • A nursing home employee testifies that he was just following doctor’s orders when he committed whatever type of act or omission caused injury or death to the resident.
  • A nursing home employee testifies that she attempted to contact a doctor when she realized that there was a problem that needed to be addressed, but the doctor did not respond in time or did not respond at all.
  • One of the nursing home experts could come up with a theory that:
    • A doctor did not properly write orders for the resident.
    • A doctor did not adequately follow the resident under the circumstances.
    • A doctor had the ability to correct whatever mistakes were made at the nursing home but failed to act appropriately.

Particularly in a wrongful death case, if plaintiff chooses to not name any doctors as defendants, it is likely that the nursing home’s defense attorneys and experts will find some way to blame the resident’s death on a doctor who was not employed by the nursing home.

To avoid this potential problem, the plaintiff’s attorney can name as defendants all of the doctors who saw plaintiff resident during the pertinent time period. Unfortunately, this strategy is usually expensive. It brings into the lawsuit multiple defense attorneys who will be attacking plaintiff’s case and so it adds substantially to the time and cost of the litigation. Naming all the outside doctors as defendants can also distract from the case against the nursing home. Furthermore, in jurisdictions that have limitations on medical malpractice cases that do not apply to nursing home elder abuse cases, naming outside doctors as defendants can limit a portion of the damages recoverable for plaintiff’s injuries or wrongful death.

Before making the decision to not name any outside doctors as defendants, the plaintiff’s attorney should consult with a physician expert on potential standard of care and causation defenses which may be raised by the nursing home. If plaintiff’s expert provides assurance that there are no viable cases against medical doctors, then plaintiff’s attorney should consider pursuing the case against the nursing home only.

The “poor us” defense

It is not uncommon for the nursing home to claim that it provided the best care that it could afford under very difficult financial circumstances.

This defense is not really applicable to the defendant’s liability for non-punitive damages. In negligence cases, the issue is whether or not the standard of care was violated. The lack of financial resources is not a defense to a negligence claim. A small “poor” nursing home has to meet the same standard of care as a giant nursing home chain.

However, if plaintiff raises lack of staffing to increase profits as the basis for punitive damages, then the defense may attempt to introduce evidence that “financial hardship” led to poor staffing. To meet this defense, plaintiff’s attorney should conduct discovery into the budgetary decisions made by the nursing home, in particular, salaries paid to the nursing home administrators and executives. If plaintiff’s lawyer can establish that nursing home executives were taking salaries of, for instance, a million dollars a year, it will undermine any assertion by the nursing home that it could not afford to pay for another fifty thousand dollar employee to make sure that it was properly staffed.

The “old people just get sick and die” defense

In a typical elder abuse and wrongful death case against a nursing home, the defendant’s lawyer and witnesses will attempt (either blatantly or subtly) to make the point to the jurors that at some point every person who lives long enough will have to “get old and die,” and a substantial number of people in our society will die in nursing homes without anyone doing anything wrong.

Plaintiff’s attorney must meet this defense argument with evidence that it was not the plaintiff resident’s “time” to die. The defense argument can be partially addressed in plaintiff’s closing argument, but it must also be directly addressed by plaintiff’s experts when they testify about causation and damages.

One of the important points that plaintiff’s attorney should try to pin down, when evaluating the case with causation and damage experts, is that the plaintiff resident would have lived for a substantial amount of time but for the nursing home’s abuse or neglect or both. The plaintiff’s attorney should investigate all the evidence for acts or omissions of the nursing home that set into motion the acts that put the plaintiff resident on a downhill course that eventually resulted in death.

The “nursing home complied with the standard of care” defense

The defendant nursing home may hire expert witnesses to testify in the litigation. Those experts may take the position that even though the nursing home did not follow every rule and regulation to perfection, it did so well enough to comply with the standard of care under the circumstances.

This defense tactic is another of the many indicators of why nursing home/elder abuse cases are so expert-witness intensive and why it is important for the plaintiff’s mental injury lawyer to retain experts to prove most theories of liability and overcome most defenses.

Depending upon the type of case, plaintiff’s counsel should consider hiring one (or a combination) of the following liability experts:

  • Nursing home administrator expert.
  • Medical Director expert.
  • Director of nursing expert.
  • Medical doctors on various standard of care issues and defenses.
  • Nursing experts on various standard of care issues and defenses.

These experts will be able to speak to the importance of following all state and federal rules and regulations and to testify that following these rules and regulations is the standard of care.