Accusations of nursing home abuse or neglect in New York require an alleged victim to prove negligence. This means showing that the care provided fell below the acceptable standards and caused the resident injury or neglect.
One of the most common defenses used by nursing homes is that they did not breach their duty of care to the patient. However, even if the evidence shows that the duty of care was breached, a nursing home can still prevail by attacking causation.
How causation works
To establish negligence in a nursing home neglect action, more than a breach of the duty of care must be shown. The alleged victim must show that their injuries were caused by the nursing home staff.
Causation must generally be shown to a reasonable degree of medical certainty. For example, the evidence could prove that a nursing home resident had a pre-existing condition that was the true cause of their injury rather than any action or inaction on the part of nursing home staff.
If your nursing home is accused of abuse or neglect and you are considering a defense based on causation, here are some strategies that can help.
Use expert witnesses
Thoroughly research expert witnesses. Some experts specifically focus on what caused an injury. Ideally, you want experts who can clearly explain the basis for their conclusion to the jury.
Cases that involve complex medical evidence, such as nursing home cases, can easily confuse and overwhelm a jury. An expert who focuses on causation and keeps their testimony straightforward can make an extremely effective case.
Keep language simple
A good way to keep testimony easy to understand is to use substitute terms for complex medical terminology. Both lay and expert witnesses should follow this rule. An example is using the term “high blood pressure” instead of hypertension.
The same concept applies when describing the alleged victim’s injury. Describe the injury in simple terms and carefully explain how the injury or complications can occur without negligence on the nursing home’s part. Give examples of other causes of the injury, such as failure to follow a doctor’s orders or a pre-existing condition.
The alleged victim will likely have their own expert witnesses to challenge the causation defense. Look for flaws in their testimony surrounding their methodology and analysis, as well as any bias.
Question medical records
Do not automatically accept the information in the treating physician’s records. The information in these records is sometimes based on nothing more than what the victim told their physician or their medical history rather than the physician’s genuine belief of what caused the injury.
The goal of treating physicians is usually to provide care rather than analyze the cause of a particular injury or event. Making sure the jury is aware of this can help weaken the treating physician’s testimony on causation.
Being accused of negligence can feel like a nightmare. However, attacking causation is one of several defenses that may be available to you.
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