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An Overview Of Elder Abuse

What Elements Must a Successful Plaintiff’s Lawyer Prove in Florida Elder Abuse Cases?

Elder abuse cases most often involve issues of negligence, neglect, medical malpractice, or wrongful death, and the elements that a successful lawyer will have to prove will depend upon the specific circumstances and issues at hand. In a case that involves negligence, the plaintiff’s lawyer will have to prove that the defendant breached a legal duty that they owed to the plaintiff, and that the breach caused the plaintiff to sustain injuries and damages.

If an elder abuse case involves medical malpractice, then the plaintiff’s lawyer will have to prove that a healthcare provider breached the standard of care, which is essentially what a similar and reasonable healthcare provider would do under the same or similar circumstances. They must also prove that the breach caused the ultimate outcome. The attorney must also prove that the injuries and damages in question were indeed sustained by the plaintiff as a result of the breached medical duty.

When dealing with an elder abuse case in which the plaintiff has deceased, the attorney must prove that the person has indeed died and that they died as the result of another person’s negligence or misconduct. Additionally, the lawyer must prove that the decedent’s family members or spouse sustained injuries and damages as the result of the plaintiff’s death.

What Types of Arguments Will a Defendant’s Lawyer Make in Florida Elder Abuse Cases?

One of the best ways to prepare a plaintiff for an elder abuse case is to review some of the most common arguments put forth by defense attorneys. The more experience an attorney has, often the better-equipped they’ll be to anticipate and counter such arguments.

There are four primary arguments used by defense attorneys in elder abuse cases, the first of which is the argument for pre-existing injuries. The pre-existing injuries argument is an assertion that a plaintiff’s injuries and damages existed prior to the event in question, and therefore were not the result of any alleged acts of abuse or neglect.

The second argument commonly advanced by defense attorneys is that despite the fact that an injury did result from an incident involving or caused by the defendant, there was no misconduct on which to blame it; without being able to point to a specific act of misconduct, it is argued that the defendant should not be held legally responsible for the injury.

A third commonly-used argument relies not on a refutation of the claimant’s legal arguments per se, but on a refutation of the amount of damages they’re claiming.

The final type of argument that’s commonly put forth by the defense is that the plaintiff themselves caused their own damages and injuries through an act of negligence, and as a result, they should not be entitled to compensation.

What Types of Damages Can a Plaintiff Receive in a Florida Elder Abuse Case?

In the context of elder abuse cases, damages are defined as losses—both economic and non-economic—that a victim suffered as the result of someone’s negligence or abuse. Prior to receiving compensation for such damages, the specific ways in which an injury negatively impacted the plaintiff will have to be clearly demonstrated. Once that has been done, many plaintiffs can hopefully look forward to receiving compensation for the following:

  • All costs associated with treatment and recovery, such as medical, prescription, and rehabilitative bills
  • Loss of wages from the inability to work
  • Damages to property that occurred as a result of the incident
  • Loss or decrease in quality of life, such as the inability to appreciate favorite hobbies
  • In the event of a death, lost wages lost support, lost companionship, and any other losses associated with the death of the loved one

Important Items of Evidence in Elder Abuse Cases

In an elder abuse case, there are several important pieces of evidence that will be useful in proving a claim and obtaining the deserved amount of compensation, including the following:

  • Photographs or medical documents demonstrating the plaintiff’s condition before and after the incident in question
  • Medical bills, evidence of property damage, evidence of lost income
  • Medical records relating to the injury from all medical providers
  • The names, locations, and dates of all hospitals, clinics, medical offices, etc. visited in association with the injury
  • Evidence of misconduct, abuse, or neglect by the defendant
  • Evidence of financial fraud or theft, such as unauthorized changes to estate paperwork, unauthorized transfers of assets or property titles, and missing assets
  • In cases involving bed sores, photographs or medical records showing broken or discolored skin, infection, exposed tissues, etc.
  • In cases involving physical abuse, photographs or medical documents of associated injuries, such as bruises, scratches, or signs of restraint

What Determines the Value of an Elder Abuse Case?

There are three elements that determine the value of an elder abuse case: economic damages, non-economic damages, and punitive damages. Examples of economic damages include loss of income due to the inability to work as a result of the injury, medical bills associated with the injury, and the legal fees associated with litigation. Sometimes victims can be entitled to damages pertaining to future medical care that may be required. To overlook non-economic damages, however, would be to overlook the pain and suffering, loss of quality of life, and emotional hardship suffered by the party as a result of the injury. Recovery in elder abuse cases commonly includes these non-economic damages. The purpose of punitive damages is to not only punish the wrongdoer but also to prevent similar actions of neglect or abuse from occurring in the future.

How Long Will it Take for an Elder Abuse Case to Settle?

In an elder abuse case, the plaintiff’s attorney must negotiate with the defense in order to obtain the highest settlement possible. Negotiations must involve proof of the injury in question, proof that the defendant caused the injury, the amount of medical costs incurred as a result of the injury, and evidence of any other damages for which they have a claim. Since these details will vary from case to case, the length of time it will take to reach a settlement will vary from case to case. Many settlements will be reached within the pre-suit period, which is 75 days. If a settlement is not reached within those 75 days, then an extension can be filed in order to allow the parties to request, review, and base their decision upon additional discovery, such as witness statements and forms of evidence previously missing.

How do Procedures Differ between Different Jurisdictions?

Due to the fact that federal statutes govern nursing home regulations across the nation, every nursing home in the U.S. must abide by the same standards. Upholding these standards and handling both criminal offenses and civil lawsuits with regard to these standards, however, is the responsibility of each individual state. As a result, the quantity and type of awards issued to the victims in these cases vary greatly from jurisdiction to jurisdiction. For example, several states exclude loss of income as collectible damage based on the argument that the victim was not employed at the time that they sustained the injury.

Due to what’s often referred to as the “guilt factor” in elder abuse cases, juries have historically awarded unreasonably superfluous amounts of compensation to victims, thus setting the stage for such trends to continue. In order to prevent this from happening, some states have placed an upper limit on the amount of damages that can be awarded, while other states have maintained that there should be no maximum amount of damages.

Yet another difference between jurisdictions has to do with punitive damages. In some states, punitive damages can only be awarded by judges, while in other states punitive damages can be awarded by juries or judges.

The final primary difference between jurisdictions involves payment for medical bills. Depending on the state in which the injury occurred, medical bills may be paid for solely by an insurance company that is not otherwise involved in the lawsuit. When medical bills are paid for in this way, the insurance companies must seek separate litigation in order to be compensated for the amount paid.

What Types of Challenges Are Presented by Elder Abuse Cases?

One of the main challenges presented by elder abuse cases is finding good witnesses to testify on behalf of the victim. In part, this is because most employees of nursing homes and medical facilities don’t have set schedules and/or don’t consistently work in the same location within the facility, so it can be difficult to track them down. It can also be challenging to obtain copies of accurate, thorough medical records, which is critical evidence in these types of cases.

Perhaps the most important aspect of handling a claim is ensuring that it’s been prepared correctly. While it is ideal to reach a resolution to these cases sooner rather than later, timeliness should never be sought at the expense of thoroughness. It’s paramount for an attorney to compile all of the pertinent documents because a single piece of paper could end up deciding a case. It’s also important for clients and attorneys to establish and maintain strong communication for the duration of a claim in order to ensure that they are on the same page and working together toward a common goal.

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