Knowing a loved one is being neglected by those responsible for caring for them can be a nightmare and you may decide to file a lawsuit. When you are preparing your case, be on the lookout for these common defenses used by nursing homes in Massachusetts.
Nursing home neglect injuries are based on negligence. You must prove the nursing home breached their duty to provide your loved one with reasonable care and this breach caused an injury, or in a worst-case scenario, death.
Contributory negligence
A nursing home may argue that your loved one’s own negligence was the cause of their injury or death. Comparative negligence law in Massachusetts states that your recovery could be reduced or barred depending on your loved one’s percentage of negligence, so it is important to show that your loved one’s actions were reasonable and non-negligent.
Following industry standards
Evidence that a nursing home followed industry standards could be used as a defense. Expert testimony could establish that the nursing home’s behavior fell below the industry standards.
Assumption of risk and consent
Assumption of risk means that the nursing home argues that your loved one assumed the risk of their injury by their own actions or by consenting to a certain procedure or treatment. Consenting to a procedure or treatment is not a defense to negligence.
Statute of limitations
The nursing home may argue the statute of limitations has expired. The statute of limitations in Massachusetts is three years from the date of the injury or death. In a nursing home neglect case, you can argue the statute starts the date you discovered the neglect. Just be sure to file within three years of that date.
Fighting back against these defenses
You must be ready with various types of evidence to counter these defenses. Witness statements, medical records, photographs, videos and facility records are often used as evidence to prove neglect.
Thorough preparation and a solid understanding of these defenses can increase your chance of a successful claim. Your loved one deserves a safe and healthy environment and nursing homes that fail to uphold their responsibilities should be held liable.