Maybe we should title this “what you really need to be prepared to do legally if your mom or dad or other loved one gets hurt from nursing home or assisted living facility neglect or abuse.” You are right to want justice for your elderly, vulnerable family member. You are also right to hold the facility accountable in the hope it doesn’t happen again.
It won't be easy because facilities fight these claims tooth and nail with experienced executives, trained insurance company representatives, and skilled defense lawyers. While seeking justice to compensate for the injury or wrongful death of a loved one may be challenging, it can still be worthwhile. You’ve just got to get professional help to do it.
I’m about to shine a light on the legal steps to get a settlement in a South Carolina nursing home or assisted living facility neglect or abuse case. In South Carolina, there’s a specific process to file a lawsuit against a nursing home for neglect or abuse. You've got to do it right, or you could lose your loved one’s legal rights forever. I’ll walk you through each step of the process, including the notice of intent to file suit, pre-suit mediation, arbitration, pleadings, discovery, pretrial mediation, and trial.
Before we start, always remember if you have any questions about a South Carolina nursing home or assisted living facility neglect or abuse case, get them answered in a free, no-pressure strategy session. I’m a Spartanburg, SC nursing home and assisted living facility neglect attorney. Call toll-free at 888-230-1841 or fill out a Get Help Now form.
Step 1: Notice of Intent to File Suit
In South Carolina, before you can officially file a lawsuit against a nursing home for neglect or abuse, you first file a document called a Notice of Intent to File Suit. “File” means delivering a proper legal form to the proper court to hear the case. The vast majority of the time, this will be the South Carolina Circuit Court of Common Pleas.
The Notice of Intent to File Suit tells the nursing home and any other responsible parties that you plan to file a lawsuit against them. The purpose of this step is to give the nursing home a chance to resolve the case before going to court. Don't hold your breath.
Here are the legal requirements for the Notice:
- Name all potentially responsible parties who caused or contributed to the injury or death.
- The most important part: Include an affidavit from your expert. An affidavit is a legal document which must be made in the proper form. It's a sworn statement by the expert revealing their qualifications to testify about the case, what they reviewed in reaching their conclusion, and their conclusion on how the nursing home or assisted living facility committed neglect or abuse that caused the injury or death. Without this, you have no case. If it's done wrong, you could lose the case. If you get the wrong expert, it could hurt your case or even cause you to lose it, adding insult to your family member’s injury.
- Contain a basic statement of the facts involved in the case. The expert should lay them out and, better yet, provide finer details behind them in their affidavit.
- Include answers to basic questions about evidence. You have to list potential witnesses, medical or funeral bills, other evidence, and contact information for experts.
Once it's filed, the Notice must be legally served on everyone you intend to sue. Again, if you do it wrong, it can delay or derail your case before the train ever leaves the station.
This is complicated. Don't risk doing it wrong. Get advice from a Spartanburg, SC nursing home and assisted living facility abuse attorney. Call toll-free at 888-230-1841.
After the Notice is filed and served, both sides have time to gather information and decide if they want to settle the case without going to court. That brings us to the next step.
Step 2: Pre-Suit Mediation
In South Carolina nursing home cases, pre-suit mediation is required before filing a lawsuit. In mediation, both sides hire an experienced lawyer who's not involved in the case, called a mediator. The mediator attempts to help both sides reach a settlement agreement. Mediation is not a trial -no one can be forced to settle here. It’s a chance to resolve the case without going to court.
Pre-suit mediation is a process. It can be simple or involved, depending on where both sides gauge their chances of settlement at this point. If there's little hope of settlement, the mediation may be no more than a brief phone call between lawyers. The good news there is that no one wasted a lot of time and money on an unfruitful chore. But sometimes both sides feel it's worthwhile to make a genuine effort at settling the case. In that event, you need an experienced South Carolina nursing home or assisted living facility neglect or abuse attorney who can artfully and skillfully provide evidence and the story of your loved one’s case in a compelling way to give you the best shot at a solid, early settlement.
If both sides can reach an agreement during mediation, the case ends, and no further legal action is needed unless a wrongful death settlement hearing is required.
If no settlement is reached, the case moves forward, straight into a major sticking point we confront in these cases.
Step 3: Arbitration
Almost all South Carolina nursing home and assisted living facility contracts contain a clause requiring disputes to be resolved through arbitration instead of going to court. Nursing homes and assisted living facilities want arbitration because it helps them and hurts residents. If the arbitration clause is upheld, the case never sees the light of day in front of the facility’s worst nightmare, a jury of 12 adults who likely all have elderly parents or grandparents they love. Even worse for the victim of nursing home neglect or abuse, these clauses can allow the facility to pick the arbitrator(s).
However, these clauses are routinely struck down by our courts. To do that, you need an experienced South Carolina nursing home abuse attorney who knows the legal arguments to have the arbitration clause ruled invalid.
You can't always avoid it, and there are some cases where arbitration can be beneficial. Arbitration can be faster and less expensive than a trial.
What arbitration is: Arbitration is like a trial but less formal. Like mediation, the parties hire an arbitrator or arbitrators, who are usually experienced attorneys or retired judges. Like a trial, the arbitrator or panel of arbitrators hears the evidence and makes a decision. Like a jury verdict, the decision is final.
Assuming you get past this stage, you can now file the lawsuit.
Step 4: The Lawsuit Process Starts With Pleadings
If the case doesn’t settle in pre-suit mediation and there’s no valid arbitration agreement, the lawsuit officially begins. The first stage of the lawsuit is called pleadings. Pleadings are written legal documents that outline each side’s claims and defenses. Like the Notice of Intent to File Suit, pleadings must be filed with the proper court and legally served on all the parties.
The main pleadings in South Carolina nursing home or assisted living facility neglect cases are the:
- Complaint.: The complaint is the legal term for the lawsuit. It lays out the same information contained in the Notice of Intent to File Suit, though it may be more detailed. Like the Notice, this is a legal document that must be properly prepared, filed, and served.
- Answer. The answer is the response to the lawsuit filed by the facility and any other parties you allege harmed your loved one. They may deny the claims, admit certain facts [usually ones that don't matter all that much], and offer their own explanation of what happened.
After that, a real grind begins in these cases, which is critical to achieving a proper outcome.
If you're worried about how you can handle all this, don't. Call a Spartanburg, SC nursing home and assisted living facility neglect attorney toll-free at 888-230-1841.
Step 5: Discovery
After the pleadings are filed, both sides enter the discovery phase. As the name indicates, each side discovers the evidence the other side has to support their case. Discovery helps both sides understand the facts and prepare for trial.
Common parts of discovery include:
- Interrogatories. These are written questions that one side sends to the other. The recipient must answer the questions in writing.
- Requests for Production. This is a request for evidence, such as medical records, nursing home policies, and staff training manuals.
- Requests for Admission. These are statements that one side asks the other to admit or deny. They can be a powerful weapon for or against your case and must be handled with extreme care.
- The most critical day in the case: Depositions. A deposition is out-of-court sworn testimony, usually conducted in an attorney’s office. Attorneys from both sides attend, with a court reporter to record all the testimony and produce it in a book called a transcript. This is where each side gets the highlights of the other side’s witnesses. The testimony can yield powerful evidence to help or hurt your case. It's got to be done professionally.
We take depositions of facility staff involved in the case to get their version of events. We may also take depositions of corporate representatives to pin them down on how they hired, trained, and supervised staff.
The facility’s attorneys will take your deposition to explore what you know about the case and how closely you attended to your loved one while your loved one was a resident. They will also go deep into your personal background. They will try to pin you down on fine details and probe you for information that can hurt your case. If you walk into this alone, consider yourself defenseless because you are. I take the time to prepare my people for their deposition to give them the best chance to testify properly.
Discovery can take several months or longer. Our goal is to gather as much evidence as possible to prove the case and evaluate the strength of the defenses. This provides us with a strong conclusion of what a jury verdict could be. Knowing what a jury might do with your case gives us a solid perspective on the proper amount to seek in a pretrial settlement.
That brings us to the next step, which should sound somewhat familiar to you.
Wondering what your mom or dad's South Carolina nursing home or assisted living facility abuse case is worth? Get your questions answered in a free, no-pressure strategy session with a Spartanburg, SC nursing home and assisted living facility neglect attorney. Call toll-free at 888-230-1841.
Step 6: Pretrial Mediation
Before the case goes to trial, South Carolina court rules require mediation again. This is called pretrial mediation. It works the same way as pre-suit mediation: a neutral mediator helps both sides try to reach an agreement. Even if both sides made no effort to settle in the pre-suit stage, they often work hard to settle the case here. Many cases settle during this stage.
This is where an experienced South Carolina nursing home or assisted living facility attorney can shine for you. You've got to understand all the evidence and testimony, recognize what's important about the evidence, and be able to present it to the mediator and the other side in a way that convinces the other side to reach a settlement that's agreeable to the victim or the victim’s family.
If the case settles during pretrial mediation, the lawsuit ends. If not, the case goes to trial.
Step 7: Trial
If the case does not settle, it moves to trial. South Carolina nursing home and assisted living facility cases take days or even weeks to try. They are extremely expensive because experts and medical providers charge high fees to appear in court.
I'll summarize the South Carolina injury trial process in the smallest nutshell. In a trial, both sides present their evidence and arguments to a jury. The jury then decides who is responsible and what damages-money compensation- should be awarded. The jury's decision is called the verdict.
Here are the essential phases of a South Carolina nursing home or assisted living facility neglect trial:
- Opening statements. Both sides present an overview of their case through their lawyers talking to the jury.
- Witness testimony and cross-examination. Each side can call witnesses, who can be cross-examined by the opposing side. The parties can present exhibits to the witnesses, and those exhibits can be admitted into evidence for the jury to consider.
- Closing arguments. Both sides’ attorneys summarize their case, telling the jury why they should rule in their favor.
- Verdict. The jury decides whether the facility is responsible and, if so, how much money the victim should receive.
If your mom or dad suffered an injury from nursing home or assisted living facility abuse in South Carolina, you need professional help now.
If you're reading this, remember an adage your parents or grandparents may have told you: “A stitch in time saves nine.” No one wants a stitch, but if you get the proper help before it's too late, you can get your loved one’s case tied up nicely long before it becomes a gaping wound.
Here's the hard truth about these cases. You won't be taken seriously unless the facility knows you know how to file a lawsuit and use the legal process. It doesn't matter how nice the facility is in the beginning; you are setting your loved one up for a failed case if you don't presume you've got to file a lawsuit to get justice. I'm so sorry to share that, but that truly is how it works.
South Carolina nursing homes and assisted living facilities fight these cases hard with their own army of trained professionals. They will do all they can to cause delay, denial, distraction, and discouragement. The loved one you entrusted to them has already been victimized. Don't let them be double victimized by falling prey to these defense tactics.
Get a trained professional to handle the dirty legal work and guide you to a proper settlement. Call me toll-free at 888-230-1841.
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