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Remember: society needs nursing homes for our loved ones whose medical needs cannot be met in a less restrictive environment. However, when corporate profits diminish patient care, then legal action should be taken not only to prevent such future conduct to other patients, but also to compensate the victim-patient.
In order to prove an EADACPA claim, clear and convincing evidence must be provided to show that the nursing home's conduct was fraudulent, oppressive, malicious or reckless. To obtain punitive damages, it must be shown that a nursing home's officer, director or managing agent either acted in such a manner or ratified the acts of others.
Believe it or not, one of the reasons for the enactment of the EADACPA statutes was to encourage lawyers to take on such cases. Before EADACPA, if the elder dies during litigation, then their damages (monetary claim) died along with them. With EADACPA, even though an elder may die during the litigation, their case continues and post-mortem recovery of general damages (pain and suffering) still exists.
In the past, attorneys were reluctant to take cases where the plaintiff (elderly victim) was very old and frail. Litigation can take 1 1/2 to 2 years (depending upon the particular courthouse) before going to trial, and often the injuries suffered in a physical neglect or abuse case expedited the victim's demise. Hundreds ofhours of the attorney's time were lost.
Not only does EADACPA allow post-mortem general damages, but attorney fees, court costs and perhaps punitive damages can be recovered as well.
Nursing home cases, in particular, are very time consuming. All medical records must be gathered and each page thoroughly analyzed. It is a forensic effort to piece together the facts to show what actually happened to the victim-patient, when it happened, and who were the responsible players.
Again, nursing homes are needed and the employee's jobs are difficult and demanding. However, abuse or gross neglect cannot be ignored and someone needs to stand up and be an advocate for those elders who cannot defend themselves.