Who Can File a Nursing Home Abuse Lawsuit in Chicago?

Posted on March 28, 2024

The legal guardian of the victim of abuse or the authorized representative of the victim’s estate can file a nursing home abuse lawsuit in Illinois if the victim is unable to bring the case on his or her own. It’s crucial to know whether you have a right to sue a nursing home for a loved one’s abuse because your case could be dismissed if you file a lawsuit but lack the legal standing to sue. Below, you’ll learn more about eligibility to file a nursing home lawsuit in Chicago and how to proceed with the process.

Broken down woman after father's death and her supportive husband. Nursing home abuse lawsuit.

Find out if you can file a nursing home lawsuit in Chicago by calling DePaolo & Zadeikis personal injury attorneys at 312-263-7560.

Nursing Home Abuse Lawsuits in Illinois

Illinois has one of the highest number of nursing home abuse and negligence cases in the nation. A report released in August 2017 by the Office of Inspector General for the Department of Health and Human Services ranked Illinois as first for nursing home abuse.

Nursing home residents experience different forms of abuse. The Illinois Department on Aging reported that in 2022, there were 6,686 cases of financial exploitation, 4,603 cases of emotional abuse, 3,757 cases of passive neglect, 2,939 cases of physical abuse, and 288 cases of sexual abuse reported. This is alarming, considering multiple studies show that most elder abuse incidents go unreported.

Bedsores, cuts and bruises, repeated slip and fall accidents, behavioral changes, dehydration, medication errors, and unsanitary living spaces are common indicators of nursing home abuse and neglect. When nursing homes breach the acceptable standards of care and cause injuries or deaths in Illinois, the victims or their loved ones can file a lawsuit against the at-fault parties.

Many people in Chicago and throughout Illinois who’ve filed lawsuits against long-term care facilities have gotten successful outcomes for their cases. Damages you could recover in nursing home abuse cases include medical expenses, future treatment costs, funeral and burial costs, and non-economic damages like emotional distress. A jury could award punitive damages in some instances.

In most cases, you have two years from the date of the injury or when you should’ve reasonably discovered it to file a nursing home lawsuit in Illinois. There are limited exceptions to this rule, which could shorten or extend the time limits. A personal injury lawyer can help determine whether any exception applies to your case. It’s always best to take action as soon as you discover or suspect abuse.

What Are the Legal Rights of Nursing Home Residents in Illinois?

The Illinois Nursing Home Care Act and other state and federal laws offer certain rights to nursing home residents. Even though residents may require assistance and care, they have a right to privacy and make decisions about their care, including consenting to or refusing treatment. They’re permitted to use their personal doctor. Other rights afforded to them include the right to:

  • Manage their own financial affairs
  • Be treated with respect and dignity
  • Complain
  • Freedom of communication and religion
  • Have visitors
  • Be free from unwarranted use of restraints

A nursing home can be held liable through a civil lawsuit if it violates these rights.

Who Can File Lawsuits on Behalf of the Affected Resident?

One of the crucial elements of nursing home abuse lawsuits is the eligibility to file a lawsuit on behalf of a resident. You may be sure that abuse has occurred, but that doesn’t necessarily give you the right to file a lawsuit on the victim’s behalf. If you file a nursing home lawsuit without legal standing to sue, the nursing home’s defense team will present a motion to the court to dismiss the case. The court will grant the motion.

Nursing home residents who’ve been abused or neglected can file a lawsuit against the at-fault facility. In many nursing home abuse cases, the victims are unable to bring a lawsuit themselves. Dementia and other severe health conditions can prevent a victim from making a claim against the nursing home on his or her own. If the victim is alive but unable to pursue a lawsuit himself or herself, the person designated as the victim’s legal guardian can file the lawsuit on the abuse victim’s behalf.

If the abuse leads to the resident’s death, the personal representative of the resident’s estate must be the one to file a lawsuit on the decedent’s behalf. If the deceased victim didn’t have a will, the court can appoint an administrator of the estate who’ll be able to bring the lawsuit. Immediate family members, legatees, and closest living relations are usually favored for appointment as administrators.

Who Are Considered Immediate Family Members in Chicago?

According to the Illinois Nursing Home Care Act, a person’s immediate family members include the person’s spouse, adult children, adult siblings, parents, and adult grandchildren.

What Is a Legal Guardian?

A legal guardian is someone who’s been appointed by the court to care for and make decisions on behalf of another person who’s physically or mentally incapable of making his or her own decisions. While courts may give preferences to family members like a spouse or adult children, an elderly or disabled person’s family members don’t automatically qualify to be named as the person’s legal guardian. The court will appoint the individual it determines will make the best legal guardian and act in the person’s best interests regardless of the individual’s relations to the elderly or disabled person.

What Are the Steps Involved in Filing a Nursing Home Abuse Lawsuit in Illinois?

Without careful preparation, families are likely to find suing a nursing home for abuse in Illinois to be more complex than they expected. It’s essential to familiarize yourself with the steps involved. While the facts of nursing home abuse cases can differ significantly, the general filing process usually involves certain basic steps.

After gathering evidence, you’ll need to file a legal complaint with the court. The complaint will include facts related to the abuse, the parties involved, and the losses suffered. The parties involved will be served with a copy of the complaint and granted a chance to respond. The discovery phase will follow, during which both sides will exchange the relevant documents, information, and evidence.

At some point, settlement negotiations will likely occur to try to reach an agreement and avoid trial. Settlement negotiations can occur before or after the discovery stage. If a settlement agreement can’t be reached, your case will proceed to trial. Both sides will have a chance to present their case during the trial, after which the judge or jury will issue a verdict.

What Are Some Pre-Lawsuit Considerations?

Before filing a lawsuit, there are several considerations you’ll want to make besides knowing whether you have legal standing to sue. You’ll want to ensure you have a valid case that can be proven. You could gather any documents, photos, and videos of the signs of abuse that could support your case. Your loved one’s doctor could tell you whether the condition of your loved one is due to abuse or natural aging. Personal injury lawyers offer free initial consultations, during which they help you understand whether your case has merit and the factors and challenges that could affect it.

A nursing home may have also made you sign an arbitration agreement during admission. This could be an issue if you want to pursue a nursing home lawsuit, as such agreements require private resolution of cases. If such an agreement is in place, you should have a lawyer review it to determine whether it’s enforceable before filing a lawsuit.

Legal Challenges in Nursing Home Abuse Lawsuits

Nursing home abuse lawsuits involve federal and state laws and regulations, medical issues, and professional standards of quality care. Their multiple facets can make them harder to navigate than other types of personal injury cases. Here are some common challenges faced when suing nursing homes.

Proving Fault

Nursing home lawsuits require proof that it was abuse or neglect that caused the victim’s injury. You won’t be able to recover damages if you can’t link your loved one’s injury to harmful or negligent actions of the long term care facility or staff. The victim could have passed away or be unable to articulate the abuse he or she suffered, making it hard to prove what happened. The nursing home could also pose a challenge by blaming the victim’s injuries on the aging process or a preexisting condition rather than abuse.

Preserving Evidence

Evidence of neglect and abuse can be destroyed, tampered with, or lost. For example, staff members could change records and charts that would’ve demonstrated improper treatment of a patient. You may need legal action, such as a subpoena, to have the evidence preserved.

Obtaining witness statements can be a significant challenge in nursing home abuse cases. Other residents may not want to come forward because they fear the nursing home employees will retaliate. High nursing home staff turnover and relocation of residents could make it hard to track down witnesses.

Tactical Delays

The nursing home may use delay tactics to impede the claims process and try to frustrate you into quitting or accepting a low settlement offer. The nursing home will likely deny the allegations against it and make compiling evidence difficult. The facility may make it hard to obtain medical records during the discovery stage.

Assessing Damages

Properly assessing damages suffered and determining the value of a case is very challenging without professional legal assistance. While it may be relatively easy to calculate the medical care expenses already incurred due to the victim’s injury, you may fail to fully account for future medical expenses if ongoing care will be required. Non-economic damages like pain and suffering are also difficult to quantify. Consequently, you may easily settle your case for far less than what it’s worth.

If your loved one died due to nursing home abuse or neglect, it’s possible to get survival action damages as well as wrongful death damages. That makes it essential to know the difference between a wrongful death lawsuit and a survival action.

Although pursuing legal action against a nursing home in Chicago is no easy feat, the right nursing home abuse lawyer will help you navigate these and other challenges. An experienced lawyer will conduct intensive investigations, review medical records, video footage, photos, and other important materials, gather the necessary evidence, and consult expert witnesses to build a strong case. The lawyer will also act quickly to preserve the evidence.

Your nursing home abuse attorney will determine the full extent of the victim’s injuries and damages, helping maximize the value of your case. Experienced nursing home attorneys are familiar with the tactics that long-term care facilities and their insurance companies use to cause delays or pay you less compensation and know how to counter them.

DePaolo & Zadeikis lawyers have over 30 years of experience handling personal injury cases, including nursing home abuse cases. Contact us today to receive a free consultation in Chicago.

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Mark A. DePaolo

Mark A. DePaolo is the founding partner of DePaolo & Zadeikis Attorneys at Law, a personal injury and workers’ compensation law firm based out of Chicago, Illinois. Mark is a past President of the Workers’ Compensation Lawyers Association, has been recognized as one of the best workers’ compensation lawyers in the field, and was selected as an Illinois Super Lawyer seven years in a row. His client focused approach and wealth of experience set Mr. DePaolo apart from many other attorneys who handle workers’ compensation law.

Years of Experience: More than 30 years
Illinois Registration Status: Active

Bar & Court Admissions: Illinois State Bar Association U.S. District Court for Northern Illinois

author-bio-image author-bio-image
Mark A. DePaolo

Mark A. DePaolo is the founding partner of DePaolo & Zadeikis Attorneys at Law, a personal injury and workers’ compensation law firm based out of Chicago, Illinois. Mark is a past President of the Workers’ Compensation Lawyers Association, has been recognized as one of the best workers’ compensation lawyers in the field, and was selected as an Illinois Super Lawyer seven years in a row. His client focused approach and wealth of experience set Mr. DePaolo apart from many other attorneys who handle workers’ compensation law.

Years of Experience: More than 30 years
Illinois Registration Status: Active

Bar & Court Admissions: Illinois State Bar Association U.S. District Court for Northern Illinois