Nursing Home Neglect Cases - More Than Meets The Eye

Before a jury ever gets to meet any of the participants in a courtroom, the person injured by medical malpractice or nursing home abuse and neglect has to satisfy several requirements.

First, the injured person or his family must provide notice of a possible lawsuit 60 days before it can be filed.

This notice must have:

1. The injured person's full name and date of birth

2. the name and address of their representative

3. The name and address of their attorney if they have one

4. The names and addresses of all other potential defendants

5. A HIPAA complaint medical authorization permitting each potential defendant to obtain the complete medical records on the injured person from every other potential defendant.

If and when a complaint is filed, the injured party or his attorney must provide proof of notice. The notice does extend the 1-year statute of limitations in TN by 120 days. Other states have 2 and 3-year statute of limitations provisions.

Every party, including all potential defendants and the injured party have the right to receive the medical records of the injured party (the injured party or his attorney must pay for all copies they receive) within 30 days of their properly authorized request.

Medical records must be provided to the experts for review and the experts must be paid for their time. (Experts for injured parties and for defendants are all paid - the difference is the insurance company pays the defendant's experts, not the defendant).

In addition, if and when a complaint is filed, the injured party or his attorney must file a Certificate of Good Faith. A Certificate of Good Faith means that a physician or multiple physicians, who are experts in the particular field in which the injury occurred, have reviewed the medical records and determined that the potential defendant(s) committed medical malpractice.

These experts have to be competent to express opinions. They have to have an active practice in the year preceding the injury in the same area or specialty as the potential defendant(s).

The expert's license must be current, active and in good standing. Some states allow experts from all over the country while other require the expert to be licensed in the trial state. They also must be familiar with the community in which the injury occurred.

Finally, they have to provide a signed, written statement that they meet all these requirements and that based on the available information in the medical records, there is a good faith basis to file the lawsuit.

Attorneys who fight for injured people do not charge for all of this preparation up front to determine if there is a case. If there is no case, then they usually "write off" these expenses. (Only if the case is successful do they get reimbursed). Therefore, most attorneys, such as those at Hill Boren, are very selective in the cases they pursue.

Once a lawsuit is filed, the injured party must continue to "jump through hoops" as defense attorneys try to trick them in deposition, put words in their mouth and undermine their credibility. Defense attorneys will also try to discredit and disqualify the experts supporting the injured party's claims.

If they are successful in disqualifying the experts, the case will never see a jury. If they cannot disqualify the experts, and the case does not settle before trial, only then will a jury meet the participants in the courtroom. (This process can take years to complete).

The next time you are asked to serve on a jury for a medical malpractice or nursing home abuse/neglect case, stop and think....Would these parties really be here if this case was frivolous? The answer is a resounding NO!