Articles Posted in Nursing Home Issues

During the discovery phase of a Virginia personal injury case, each of the parties can request that certain evidence is provided by the opposing side. As a general rule, parties must provide evidence when it is requested and ordered by the court, even if the evidence at issue is harmful to the case of the party who possesses it.

Given this reality, it may be tempting for a party who is in possession of adverse evidence to alter or destroy it. The legal term for the destruction or alteration of evidence is spoliation. Of course, the spoliation of evidence is prohibited, and parties who are found to have spoliated may face serious sanctions. One common sanction is an instruction to the jury allowing the jurors to take an adverse inference from the missing evidence. A recent case discusses this issue in detail.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured in a slip-and-fall accident while a resident in the defendant nursing home. Evidently, the plaintiff’s fall was caught on video, which the nursing home administration was able to view several times. However, the nursing home did not preserve the video, and eventually, it was recorded over.

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In any Virginia personal injury claim, a plaintiff not only has to prove that the defendant acted with negligence or intent, but also that the plaintiff sustained compensable damages. In some cases, a defendant’s conduct may be so egregious that the plaintiff may be able to recover punitive damages in addition to compensatory damages. Punitive damages are generally very substantial, as they are designed to deter similar future conduct.

In one recent case, a court upheld an award of punitive damages of over $4 million in a nursing home neglect case. The plaintiffs brought their claims against a nursing facility after three residents died at the facilities in a “vent unit.” The vent unit was designed for ventilator-dependent patients. The plaintiffs claimed that the residents died due to inadequate staffing and a lack of supplies in the vent unit.

The evidence presented indicated that one resident’s breathing apparatus was detached without any alarm going off.  Another resident was found dead with his ventilator and its alarms turned off. The third resident’s tracheostomy tube was not properly replaced after it had been removed by nursing home staff. The plaintiffs claimed that all three deaths were caused by inadequate staffing and a lack of supplies.

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Placing a loved one in a Virginia nursing home is not an easy decision. On the one hand, it can be difficult if not impossible to provide the level of care that aging loved ones need. However, choosing which Virginia nursing home to trust with your loved one’s safety can also be a difficult decision, especially given the reputation of nursing homes in general.

While most Virginia nursing homes are staffed with caring workers and provide a good quality of life for residents, one does not have to look far to realize that is not always the case. In fact, it is estimated that more than 1 in 10 residents experience some form of physical abuse or neglect at some point in their stay. Of course, in the event of nursing home abuse or neglect, the nursing home can be held responsible for any resulting injuries.

That being said, holding a Virginia nursing home responsible for a loved one’s injuries can be tricky for a number of reasons. First and foremost, most nursing homes include an arbitration clause in their pre-admission contracts, requiring that any claims be resolved through binding arbitration rather than through the court system.

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One of the most hotly debated issues in personal injury law is the enforceability of arbitration contracts in cases against nursing homes and assisted living facilities. These clauses, when enforceable, prevent victims of Virginia nursing home abuse or neglect from filing a complaint in a court of law, and they require that they resolve the claim through binding arbitration.

Arbitration in and of itself is not necessarily a bad thing. However, the fact that nursing homes are able to choose the arbitrator who will hear the case leaves many wondering whether the forum is as neutral as it is claimed. There are other problems with arbitration clauses as well. For example, many times, they are buried deep in paragraphs of small text, making it unlikely that someone will see and understand what exactly they are giving up by agreeing to arbitrate their future claims.

For these reasons, courts across the country have expressed a hesitancy to enforce some arbitration clauses. However, a court will enforce arbitration clauses in some cases, especially when the clause is clearly designated, the person signing the agreement was of sound mind, and the clause itself is not substantively against public policy. A recent case illustrates the type of clause that may be upheld by the courts; however, it is important to realize that these cases are decided on a case-by-case basis, and even the most seemingly insignificant difference in facts can result in a different outcome.

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