Trial considerations for personal injury attorneys representing plaintiffs in elder abuse cases

There are several ways in which a knowledgeable personal injury attorney can help advance the plaintiff’s position in the trial of a nursing home/elder abuse lawsuit.

Jury selection

It is not uncommon in a nursing home/elder abuse case for each party to be angry at the other party. Plaintiff may be outraged at the elder abuse that occurred at the defendant nursing home. The defendant may be angry that “greedy” plaintiffs, who had decided to “dump” their parent in a nursing home and to some extent neglect the parent, can bring a lawsuit when they “smell money.”

The facts of a particular case will determine whether jurors will buy the position of either side. However, in general, people are more likely to view the motives of a nursing home as suspect versus the motives of plaintiff in bringing a lawsuit.

During the jury selection process, the attorneys have the chance to evaluate prospective jurors and to decide whether to accept or challenge any jurors. Some of the factors that experienced elder abuse attorneys will consider when evaluating a potential juror are:

• The juror’s attitude about caring for elders and the level of care that the juror expects to be administered to the elderly.
• The juror’s age. Older jurors may be more concerned about being vulnerable to substandard nursing home care when they are no longer capable of independent living.
• How sensitive the juror is to the idea of people being “mistreated and abused” by those who are supposed to be taking care of them. Does the juror consider abusing the elderly to be a grave violation of “old fashioned” ethics?
• Whether the juror is upset at the fact that a family did not get their “money’s worth” of the treatment that they paid for (or the government paid for) in terms of care of the resident elder.
• Does the juror appear to have strong ethical and moral values? People with strong ethical and moral values have a tendency to favor the plaintiff’s position in nursing home elder abuse cases.

Opening Statement

During opening statement in most personal injury trials, it is critical for the plaintiff’s attorney to state a clear theme of the case. In nursing home cases, one clear and compelling theme is the corporate greed of the defendant evidenced by under-staffing to increase profits.

In most cases, the plaintiff’s opening need not disparage nurses or other employees of the defendant nursing home. If the evidence is there, the plaintiff’s attorney will want to point out in opening statement that it was in fact the managing agents of the nursing home who caused plaintiff’s damages, as opposed to an employee such as a nurse. The nurses involved in plaintiff’s care were as much victims of corporate greed as was plaintiff. In fact, the policies and practices of corporate management created the environment in which plaintiff was injured.

For instance, even in a case where a nurse forged the medical records, the plaintiff’s attorney should let the jurors know if it was the policy of the nursing home to allow or encourage this to happen and should make the point that management knew, or should have known, that this happened.

During the opening statement, the elder abuse plaintiff’s attorney can discuss the profit motive of the corporation and the fact that it put financial reward ahead of patient safety and care. The opening statement should emphasize the defendant’s failure to create, disseminate and enforce policies to protect the elderly residents.

It is also important for the plaintiff’s attorney to humanize the abused elder, who may be deceased at the time of the trial. This can be done through videos and photographs as well as testimony of family members, including grandchildren. If supported by the facts, the plaintiff’s opening statement should also point out the fraud, cover-up and dishonesty of the nursing home institution.

Witnesses the plaintiff’s attorney may call in a nursing home/elder abuse trial

At the trial of a nursing home/elder abuse lawsuit, there are several types of witnesses that the plaintiff’s attorney may call to testify.

The plaintiff’s own liability expert will testify about the standard of care and the policies and procedures that should be followed by nursing homes to comply with the applicable legal standard of care.

The plaintiff’s attorney might decide to call the defendants as witnesses. The administrators of the nursing home can be questioned about failing to comply with the standard of care and state and federal regulations. They will probably assert that all appropriate laws and regulations were followed. But lower level employees, who may have violated the laws on a day-to-day basis at management’s direction or with management’s tacit approval, may provide testimony that contradicts the testimony of the administrators.

The plaintiff’s attorney can also question lower level employees about whether they did not follow the standard of care, laws, rules or regulations because of the directives of the administrators; about whether the administrators failed to provide appropriate training; and about whether there was a lack of time to follow appropriate procedures because of a significant lack of adequate staffing.

If appropriate, the plaintiff’s attorney should call as witnesses the employees or independent contractors of the nursing home who made financial and budgetary decisions.

The plaintiff’s attorney may also call as witnesses any state or private investigators to verify the nursing home’s past violations and the poor care given to the resident plaintiff and other residents.

Family members may also be called as witnesses. Topics that their testimony might cover include:

• What their expectations were of the nursing home.
• How the nursing home led them to have those expectations.
• The poor care given to the resident plaintiff.
• The fact that they have brought this lawsuit to make sure that the same abuse does not occur to another family.

Closing Arguments

In closing argument, the attorney for the plaintiff will probably revisit themes presented in the opening statement. Once again, the focus is usually on the corporation. Focusing on the corporation is particularly important if the staff was incapable of providing the necessary care to plaintiff because there was not enough staffing, equipment and supplies to take care of patients and follow regulations.

Plaintiff’s lawyer can point out that we as a society licensed the defendant nursing home to take care of our parents, grandparents, aunts and uncles. This is a very vulnerable portion of our population; people who cannot protect themselves. Thus, we turn to the nursing home to help our loved ones be protected.

The closing argument should also remind the jurors of the promises made to the elder and the elder’s family, and how those promises were broken. The jurors should not forget that the nursing home has “profited” from its negligent practices.

On the issue of damages, the jurors will appreciate a discussion of the value of human life. An injury to an elderly person is just as significant as, if not more significant than, an injury to a younger person. Peace of mind in our final days is what we all dream of and hope for. With only a limited number of days left in one’s life, each day becomes more valuable to the elderly person.

One damage argument that has worked in elder abuse cases is this:

“Imagine two individuals who are robbed of $500. One is a millionaire and the other is traveling with his last $500. Who suffered more? Who experienced the greater loss? The older we get, the more precious our days become.”

An additional theme is the importance of human dignity. One can live with all kinds of pain, but if you strip a person of his or her dignity, they become nothing more than animals. Our elderly family members are not animals. They are human beings that must be treated with dignity. But because the defendant nursing home was callous and did not follow the rules and regulations, a family member was severely injured or died. The jurors must also be reminded that they have a special responsibility in the case. It is up to the jurors to provide justice. The jury’s verdict is the only thing that will teach the defendant nursing home the lesson that it cannot violate federal and state nursing home regulations without paying for the consequences.