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Legal Speak

Negligence Per se

Published February 18, 2011 10:28 AM by Tony DeWitt

Lawyers, at least in most states, are not allowed to advertise that they are "specialists" in any particular area of the law.  They can say, however, that they limit their practice to a particular type of law. Wilkes & McHugh, P.A. is a law firm in Arkansas that, while it cannot claim that it specializes in nursing home litigation, in fact does most of its work in this area.

Wilkes & McHugh frequently obtains large verdicts and settlements against nursing homes by being very careful about what kinds of cases it takes. Unlike doctors, who do not get to turn down a patient because their cancer might not be curable, lawyers decline to represent injured parties all the time if the combination of liability and damages are not there.

In a recent press release by the firm the media were informed of a case filed in Arkansas against a facility. An examination of some of the claims set forth in that lawsuit can provide a laundry list of things to do (or not do) to avoid litigation.  According to the press release liability was premised on: the [alleged fact that] defendants operated and managed the facility so as to maximize profits by reducing staffing levels below that needed to provide adequate care to residents. As a result, [resident] endured extreme pain and suffering, hospitalization, mental anguish, degradation, disability, emotional distress, and loss of personal dignity.

Pay close attention to the words used in the complaint. The claim that the facility managed nursing care to maximize profit is likely tied to state survey findings that the facility did not meet minimum staffing guidelines. When a statute or regulation prescribes rules of conduct, and a defendant fails to abide by the regulation, the law in some states allows a plaintiff to claim "negligence per se." This simply means that the plaintiff need only show that the regulation was violated (usually by introducing evidence of the state sanction) in order to show that the facility was negligent. It is up to the facility to rebut the presumption that by not having enough staff, it was negligent - that's a very difficult road to travel.

In my next blog post I'll discuss more about negligence and the public's perception about nursing homes.


posted by Tony DeWitt
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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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