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  • Writer's pictureMichael Kornhauser

The Process: What to Expect from Your Nursing Home or Assisted Living Facility Injury Case



Lady justice in the background of an image of a sad elderly woman with her head in her hands.

Pre-Suit

Before filing a lawsuit for nursing home or assisted living facility abuse or neglect, the “prospective” plaintiff must provide notice to the facility of his or her intent to file a lawsuit. This “notice” is commonly referred to as the “Pre-Suit Notice” or the “Notice of Intent”. The pre-suit notice must conform to the requirements of either Chapter 400, Florida Statutes (for nursing homes) or Chapter 429, Florida Statutes (for assisted living facilities).

 

The Pre-Suit Notice then begins a seventy-five (75) day period commonly referred to as “pre-suit” or “the pre-suit period.” During pre-suit, the parties have an opportunity to exchange information about the potential claims and defenses to determine whether they can resolve the dispute without the need to file a lawsuit. In many cases, the parties will agree to mediate the dispute with a certified mediator. To be clear, mediation is different from arbitration. To learn about the difference between mediation and arbitration, take a look at Mediation v. Arbitration: What’s the Difference.

 

Unless a prospective defendant facility waives pre-suit, a prospective plaintiff cannot file a lawsuit until expiration of the seventy-five (75) day pre-suit period. It's also important to note that the seventy-five (75) day pre-suit period tolls the statute of limitations to file a lawsuit. In other words, you can file your pre-suit notice on the last day of the statute of limitations, engage in pre-suit, and still file your lawsuit. To learn more about the statute of limitations for nursing home and assisted living facility abuse and neglect cases, check our our blog titled, "The Deadline to File a Florida Nursing Home or Assisted Living Facility Abuse or Neglect Case."

 

Pre-Trial Litigation

If the parties are unsuccessful in resolving the dispute during pre-suit, the prospective plaintiff can file a Chapter 400 or Chapter 429 lawsuit. Upon filing the complaint, the prospective plaintiff becomes the plaintiff, and the prospective defendant becomes the defendant. The plaintiff, through counsel, must then serve the complaint on the defendant through a process server. Once served, the defendant has twenty (20) days to file a response. The response could be an answer and affirmative defenses or a motion to dismiss attacking the sufficiency of the complaint. If the defendant files a motion, the parties must either resolve the issues raised in the motion or set the motion for hearing before the presiding judge. Once the complaint and answer are both filed, the case is considered “at issue”. At that time, the case can be set for trial.

 

Before trial, the plaintiff will engage in discovery aimed at uncovering facts necessary to prove the plaintiff’s case and disprove any defenses claimed by the defense. Likewise, the defendant will engage in discovery aimed at disproving plaintiff’s case and establishing its defenses, if any. To that end, the parties may issue written discovery aimed at obtaining documents or things, written statements, or admissions. Parties are also permitted to take depositions of opposing parties, their respective representatives, their employees, witnesses, and experts.

 

As the case proceeds to trial, the parties may attempt to mediate the case with a certified mediator, even if they were previously unsuccessful in reaching a resolution during pre-suit.

 

Trial

If the parties are unable to resolve their dispute during pre-suit or the pre-trial phase, the matter will be tried in front of a judge and jury. The trial is generally seen as the final opportunity for each side to present their best evidence and arguments as to why their view of the case and desired outcome is the correct outcome. Each party will not only present their fact witnesses and exhibits, but they will also present their expert witnesses. Expert witnesses in these cases are generally nurses and/or doctors who have specialized knowledge about the facts at issue in the case and who assist in educating the fact finders (usually a jury) regarding the appropriate standards of care and/or the cause of a particular injury. At the conclusion of the trial, short of any motions to prevent the issues from being considered by the jury, the jury will retire to the deliberation room and work together for as long as the court deems necessary to reach a unanimous verdict.

 

Post-Trial

If the plaintiff is successful, subject to any post-trial motions, the court will enter a judgment consistent with the fact finder's verdict. Either party can appeal the final judgment if there are grounds to do so. Oftentimes, plaintiffs believe that entry of a judgment means that the defendant will simply write a check for the amount awarded. While it may happen, plaintiffs are generally forced to embark on post-judgment collection efforts to satisfy the award. Fortunately, the post-judgment discovery available to plaintiffs is much broader than pre-trial discovery. In other words, a plaintiff sitting as a judgment creditor can discover, among other things, banking information and financial data and can even force the defendant/judgment debtor’s bank to access the defendant’s account and pay the judgment, using defendant’s funds.

 

The attorneys at FIDJ are experienced in handling nursing home and assisted living facility injury cases. If you or your loved one was injured at the hands of a nursing home or assisted living facility, contact FIDJ today, before it’s too late.

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