It would seem that patients who have been neglected in nursing homes to the point that they are suffering from pressure sores would be an easy case to prove. However, that is not always the case. First off, the large conglomerates often own these nursing homes and have teams of legal counsel that are very good at protecting their clients from legal disputes and are well versed at the time-honored defense tactics of: delay, deny, delay. Although it is absolutely possible to successfully prosecute these cases, for a family coping with a loss, it is important to recognize that even the most legitimate claims are frequently met with fierce opposition.
Passing the blame around
The main contention in a pressure sore case is to prove that they were caused by neglect and there is not any other reasonable explanation. The legal counsel for the nursing homes will try to show that their clients are not to blame for the patient sustaining pressure sores and that there were circumstances that led to the sores that were unavoidable. Common reasons that they may try to use are:
- Poor health. Some medical conditions can make pressure sores more common and difficult to prevent such as diabetes and obesity. The legal defense may also use the patient’s age or frail state as a reason the sores were impossible to prevent.
- Patient is to blame. They may try to prove that the nursing home gave the patient instructions to avoid pressure sores that they did not comply with.
- Preexisting condition. If there were sores when the patient was admitted, they may claim that these were not the fault of the nursing home, even though they allowed them to progress.
- Inevitability. Sometimes now referred to as the ‘Superman Defense’ after Christopher Reeve who who after a intense recovery from a spinal cord injury, ultimately fell victim of a pressure sore. The theory is that no matter how good the care provide at the particular nursing home / hospital was, the wound would have developed anyway.
Looking beyond the initial defense allegations
Just because the nursing home’s legal team uses these types of defenses does not mean the case cannot be won. However, it does take extensive research and work to prepare a case that will win. The good news is that when there is negligence on the part of a facility, the case can be successfully litigated with intense preparation and the use of qualified experts. While statistics tell us that the majority of pressure sore lawsuits are settled before they make their way to a jury, it is crucial to prepare as though the case is indeed going the distance. With perseverance and the truth on the patient’s side, these cases can be successful. For families facing a situation where a loved one developed a decubitus, it is important to work with lawyers who are familiar with the nursing home defense tactics used in these cases. Anyone looking for a quick fix in these cases should be forewarned that these cases are rarely resolved in a quick fashion. While it can be a process that can try the patience of the victim and their families, our justice system still offers the unique opportunity for everyday people to bring some of the largest corporations to task in circumstances where they have act negligently.