Failure to mitigate as a nursing home abuse or neglect defense

A lawsuit against your nursing home can cause you significant financial damages and seriously tarnish your business reputation.

When people hear about claims of nursing home abuse or neglect, they may automatically assume the nursing home is at fault. This is somewhat understandable since nursing home abuse or neglect is a serious topic and claims should be taken seriously since some are valid.

You do not have the burden of proof

However, there are times that claims are not valid. If you are sued by a patient or their family, they have the burden of proving their case. You are not required to prove that you and your nursing home staff were not negligent or abusive.

Depending on the situation, you may still choose to assert an affirmative defense. If you put forth an affirmative defense, you do have the burden of proving the defense.

Failure to mitigate is a common affirmative defense in malpractice claims involving nursing home abuse and neglect in New York.

How failure to mitigate is used as a defense

For example, if the patient or their family learned about the abuse or neglect, but did not take steps to obtain medical care or treat any injuries, you can argue that they had a duty to mitigate any further damages and failed to do so.

Successfully proving a failure to mitigate can reduce your nursing home’s liability. The patient will ask for a certain number of damages, but if your evidence shows that they waited several weeks after learning about the abuse to treat an injury and that caused the injury to get worse, the amount will be reduced.

There are other affirmative defenses that could be applicable to your situation. Attorneys who focus on defending nursing homes against unfounded or frivolous claims of abuse or neglect can help you address your situation.