Nursing Home Abuse and Neglect

What is nursing home abuse and neglect?

Arizona Law defines “abuse” as the intentional infliction of physical harm, [an] injury caused by negligent acts or omissions, unreasonable confinement, sexual abuse, or sexual assault. It includes the impairment of physical condition as evidenced by skin bruising, pressure sores, bleeding, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ, or any physical condition that imperils health or welfare. (A.R.S. §§ 13-3623; 46-451). Examples of abuse include hitting, shoving, tripping, pushing, pulling, scratching, slapping, pinching, cutting, biting, sexual abuse, unnecessary or excessive physical or chemical restraints and allowing a resident to be abused by other residents.

The state defines neglect as “a pattern of conduct, without the person’s informed consent, deprivation of food, water, medication, medical care or services, shelter, cooling, heating, or other services necessary to maintain minimum physical or mental health. (A.R.S. § 46-451). Signs of neglect include malnutrition, dehydration, failure to receive medication, over-medication, unexplained injuries, unexpected contraction of illnesses or diseases, poor hygiene, and depression.”

What can I do if my loved one is being abused in a nursing home?

Seek legal advice as soon as you suspect abuse or neglect. A civil lawsuit filed by the resident and/or his or her family against the facility will seek compensation for losses related to the abuse, including pain and suffering. Criminal litigation is typically reserved for extreme cases where the facility’s behavior and failure to meet state and federal regulation standards requires the home to be held accountable for their actions in a court of law.

How much is my nursing home abuse lawsuit worth?

In determining what your case is worth, the court will examine factors including the duration of abuse; the type of abuse inflicted; types of injuries sustained; related current and future medical costs; and pain and suffering. These factors can be used in settlement negotiations or as evidence if the case goes to court. It is hard to estimate an actual amount without a review of the evidence and documentation of your specific case.

Can we settle a nursing home abuse case outside of court?

Most nursing home neglect and abuse cases are settled outside of court. However, as experienced trial lawyers, we will take your case to court if we believe it is in your best interest.

Who can file a lawsuit against a nursing home?

A lawsuit can be filed by either the resident or by a family member on their behalf. Often times, this will depend on the mental state and abilities of the resident.

Is there a time limit for filing a lawsuit against a nursing home?

A lawsuit against negligent nursing home negligence has a deadline, known as a statute of limitations, which requires that your lawsuit must be filed by a specific date or you lose your right to sue. If you suspect neglect or abuse, you should consult an attorney as soon as possible.

What Rights do Nursing Home Patients have?

Nursing home residents have certain rights and protections under the law. A nursing home must list and give all new residents a copy of these rights.
These resident rights include, but are not limited to:

  1. The right to be treated with dignity and respect.
  2. The right to be informed in writing about services and fees before you enter the nursing home.
  3. The right to manage your own money or to choose someone else you trust to do this for you.
  4. The right to privacy, and to keep and use your personal belongings and property as long as it doesn’t interfere with the rights, health, or safety of others.
  5. The right to be informed about your medical condition, medications, and to see your own doctor. You also have the right to refuse medications and treatments.
  6. The right to have a choice over your schedule (for example, when you get up and go to sleep), your activities and other preferences that are important to you.
  7. The right to an environment more like a home that maximizes your comfort and provides you with assistance to be as independent as possible.

Divorce & Family Law

When can I file for a divorce in Arizona?

You or your spouse must have been a resident of Arizona for at least 90 days before you can file for a divorce.

What reasons must I give in order to get a divorce?

Arizona is a no-fault state, which means that neither spouse needs to give a reason for the divorce. Only one party needs to assert that he or she believes the marriage is “irretrievably broken.”

Is mediation a viable option?

Mediation is a process in which a neutral third party (mediator) facilitates a voluntary negotiation process between the parties or litigants. The mediator assists the parties in reaching a mutually satisfactory agreement, but does not make any decisions regarding the settlement. Unlike a judge or arbitrator, the mediator has no authority to render a decision or force either party to accept a settlement. The parties retain ownership and control of their issues and of the responsibility for resolving them.

Benefits of mediation:
The ultimate decision is left to the parties.
There is unlimited creativity surrounding the agreements.
Mediation is significantly less expensive than litigation.
The animosity that generally arises during the litigation process can be minimized or avoided altogether.

What steps are in the divorce process?

  1. One spouse files a Petition for Dissolution of Marriage and ancillary documents.
  2. After the Petition for Dissolution of Marriage is filed, copies of all of the papers must be served on your spouse unless service is waived in writing and filed with the court. Your spouse has 20 days (if served in Arizona) or 30 days (if served outside of Arizona) to respond to the Petition for Dissolution of Marriage.
  3. If your spouse fails to file a Response within those 20 days, the other spouse can apply for a default. After a request for default is filed, your spouse only has 10 days to file a Response or risk the divorce being granted on all of the terms of the petitioning spouse.
  4. If no Response is filed, at the end of the “cooling off” period of 60 days after the Respondent is served with the divorce papers, the Petitioner may obtain a Default Decree of Dissolution of Marriage.
  5. If a Response is filed but both parties reach an agreement as to all issues, they can submit a Consent Decree of Dissolution of Marriage that sets forth all of their agreements for the judge to sign.

What if my spouse does not agree to a divorce?

If your spouse does not want the divorce, he or she may request that the parties attend a conciliation meeting with the court. The divorce will be put on hold for up to 60 days while that meeting takes place. If the meeting does not result in the parties agreeing to postpone the divorce, the divorce will go forward.

How long does it take to get a divorce?

After the spouse is served with the Petition for Dissolution of Marriage, a 60-day “cooling off” period must pass before the divorce may be finalized. It is not possible to be divorced any sooner even if both parties agree. If the parties do not agree on the terms of the divorce, a trial will be set. Depending on the county, these proceedings could take as long as six to nine months before a divorce would become final.

What is covered in a Decree of Dissolution of Marriage?

A Decree of Dissolution of Marriage will:

  1. Terminate the marriage.
  2. Determine custody, parenting time and support of the minor children, if any.
  3. Determine spousal maintenance (alimony), if any.
  4. Divide property acquired during the marriage, and affirm property owned prior to the marriage (if any) to the party who owned it.
  5. Assign responsibility for debts incurred during the marriage, and affirm debts owned prior to marriage (if any) to the party who owed them.
  6. Determine responsibility for attorney fees and costs, if any.
  7. Restore the last name of a requesting spouse (optional).

How will property be divided?

Arizona is a community property state, meaning that all property acquired during the marriage through the labor and effort of the parties is considered to be marital property.

Gifts or inheritance given specifically to one spouse are an exception and are not considered marital property for purposes of property division.

Will I pay or receive child support?

A child support determination will take into account child custody, visitation and parenting time, as well as the income and obligations of each parent. Even if you have joint or shared custody, if it is in the child’s best interests, one parent may be obligated to pay child support to the other.

The Arizona Supreme Court’s Child Support and Family Law website offers many valuable resources including a Child Support Calculator, Child Support Guidelines, answers to Frequently Asked Questions, forms, instructions and useful links.

Can a child support obligation be modified?

If there has been a significant change in circumstances that affect your ability to pay child support, or if you are seeking an increase in support to address your child’s needs, you can calculate potential adjustments using the Child Support Calculator available on the Arizona Supreme Court Child Support and Family Law website. (Be advised that the calculator only provides an estimate and should not be considered legal advice.) The court may increase or decrease child support payments based on the needs of either party as long as the child’s best interests are still protected.

Will I receive or pay spousal maintenance?

Spousal maintenance was formerly called alimony in Arizona. Our state takes a rehabilitative approach to this issue meaning it is intended to provide a bridge to financial independence. A husband or wife must prove that spousal maintenance is necessary in order for them to meet their monetary obligations.

An experienced family law attorney will aggressively assert your right to financial support, or defend you against unreasonable demands for spousal maintenance. In some cases the attorney will hire a vocational rehabilitation expert or “Certified Divorce Planner” to analyze your situation and determine how long it should take for the receiving party to achieve financial independence.

We recommend that you contact an attorney if you are seeking to modify a spousal maintenance agreement.

Can spousal maintenance be permanent?

Spousal maintenance is most often temporary; however, in certain situations permanent maintenance may be awarded. For example, if one party is disabled or if one party has been out of the workforce for a lengthy time during the marriage and is unable to acquire the skills necessary to be self-supporting.

What if my spouse has committed domestic violence or may become violent?

If your spouse has committed domestic violence or may become violent during the dissolution proceedings, you may apply for an Order of Protection. The forms for an Order of Protection are available for free at any Superior Court, Justice of the Peace Court or City Court. You will see a judicial officer on the same day that you fill out the Petition for Order of Protection. There is no charge to apply for an Order of Protection.

Always call 911 in an emergency.

Does Arizona have a mandatory parent education program?

If the parties have a minor child or children together, both parties must attend a court mandated education program about the impact of divorce on children. Both parents must attend, even if there is no disagreement regarding custody and parenting time. If one party does not attend, he or she may not be able to obtain custody and/or parenting time with the child(ren). The parties may not attend the same class at the same time.

Personal Injury / Accidents

How much will a lawsuit cost me?

Every prospective personal injury client is entitled to a free initial consultation with one of our lawyers. During this meeting, the attorney will gather facts from which we can make an initial assessment of your personal injury case. Based on our honest evaluation, we might inform you that your harm is not compensable or that the chances of recovery are not likely.

Personal injury cases are typically handled on a contingency basis. Under this arrangement, you will not pay any attorneys’ fees unless there is a recovery by settlement or verdict. Under this kind of agreement, we receive compensation for our work after we recover money for you based on a set percentage of the total recovery, consistent with applicable law and regulations.

Costs related to your case are paid at the conclusion and are separate and distinct from our attorneys’ fees. Some common examples of these costs are filing documents with the court, serving defendants with notice, obtaining records and hiring experts.

How will the value of my personal injury case be determined?

There is no set or predetermined formula for determining the value of a personal injury case. Depending on the type and severity of your injury, you may be entitled to reimbursement for medical bills, time lost from work, medical costs for resulting injuries, pain and suffering, and more. A personal injury attorney will estimate the value of your lawsuit based on expert assessments and evidence, such as whether there are discrepancies in the testimony, medical records, or other pieces that may detract from the integrity of the injured party’s case.

The following factors will be considered when determining the amount of compensation owed for your injuries: the severity of your injuries; the details of your accident; your degree of fault; your employment history; your ability to work; and your life expectancy. The manner in which you obtain medical treatment, your lifestyle, and your litigation history will also be considered.

The law allows recovery for a wide range of situations, including: • Hospital bills • Medical costs • Rehabilitation and therapy services • Lost wages since the injury occurred • Lost future income • Pain and suffering • Decreased or loss of ability to engage in regular life activities

When someone is injured, other members of the family may be affected as well. Those harms may be recovered separately from the damages awarded to the individual hurt. A personal injury attorney will explain whether that situation applies in your case.

It is wise to be skeptical of the value an insurance company places on your injury. The company does not have your best interests in mind. In fact, they have incentives to drastically underestimate the value of your losses. Only a legal professional with a duty to fight for your interests can provide a fair assessment of the value of injury.

Should I accept a settlement from the insurance company?

An insurance company’s interest is to ensure that you receive as little compensation as possible for your injury. The insurance adjuster is likely rewarded for resolving claims for as little compensation and as quickly as possible. It is not uncommon for an insurance adjuster to visit an injured party soon after an accident occurred, when the victim is physically and emotionally vulnerable. The adjuster may come with an offer to entice you to accept a settlement for far less than you could recover if you had legal representation. It is prudent to not to sign away your rights without being fully appraised of the consequences. A personal injury attorney will ensure that the company actually pays the full value of the claim, taking into account all of your past and future losses.

Should I provide the insurance company with a recorded statement?

When an accident occurs, it is common for an insurance company to ask the injured party to make a recorded statement. These statements are usually requested immediately after the accident, when you may not fully know or understand the full extent of your injuries. Insurance adjusters are trained to discretely influence you into saying something that will protect their company from liability or limit your claim against it. It is very easy for comments in recorded statements to be taken out of context and used against you in litigation. The ultimate cost of this to you could be hundreds, or even thousands, of dollars.

Medical Malpractice

How do I know if I have a medical malpractice case?

You may have a case if you or a loved one was severely injured or killed because your doctor, nurse, nurse’s assistant or other medical professional failed to provide you with the appropriate care or treatment. An experienced medical malpractice lawyer can help you to determine if your potential claim constitutes negligence.

Who is liable for medical malpractice?

Any medical or healthcare provider, including physicians, nurses, therapist and other, who have caused injury to a patient because of professional negligence or substandard care may be named as a defendant in a lawsuit.

Their employer (hospital, HMO, nursing home, professional corporation, etc.) may also be sued.

What must be proven in a medical malpractice lawsuit?

A plaintiff in a medical negligence case must establish through evidence that: 1) The defendant was negligent (rendered substandard care); 2) The negligence was a proximate cause of injuries; or, 3) The plaintiff suffered damages as a result.

All three elements must be proven. Expert testimony is almost always required to prove negligence and causation of damages. Licensed physicians who are familiar with the standard of accepted medical care for the medical specialty involved are required as witnesses to prove the case. The experts must establish what the standards were and how the defendant violated them and what damage was caused by the substandard care.

How long does it take to resolve a medical malpractice case?

It is impossible to predict exactly how long it will take to resolve a medical malpractice case. Some cases are decided within a year or two while others take upwards of four years until they are concluded.

Wrongful Death

Who can bring a wrongful death case?

In Arizona, the only persons who can bring such a claim are the parents, the wife or husband and natural children of the person who died. They may seek to be paid for any loss of financial support from their lost loved one, as well as their loss of love, guidance and companionship.

How long do I have to pursue a claim?

If you are unable to agree on an amount to settle your claim with the other party or their insurance company, you must file a lawsuit to protect your rights. For most wrongful cases in Arizona, you must file the lawsuit within two years of the death.

How are damages determined?

The decedent’s contributions in the past, their life expectancy at the time of their death, their health before the accident, their age, habits, occupation, past earnings and likely future earnings, and funeral expenses will be considered.

In Arizona, a family may also be entitled to punitive damages from emotional stress, pain and suffering. Depending on the circumstances surrounding the death, an Adult Protective Services Act (APSA) claim may also be made.

Do I need an attorney to pursue a wrongful death case?

In almost every wrongful death case, the potential plaintiffs should consult with an attorney. The law in this area is complex as to who is entitled to bring a case and who is entitled to a recovery. Even when the decedent was killed by a person with a relatively low insurance policy limit, it is wise to seek the advice of an attorney because an investigation may reveal other potential defendants who are responsible for the death and capable of paying damages.

Insurance Bad Faith

What does insurance “bad faith” mean?

“Bad faith” refers to unreasonable or unfair conduct by an insurance company. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurance company acts in “good faith” toward you. When it unreasonably withholds the benefits of the policy, it is considered to be acting in “bad faith.”

How do I know I have a “bad faith” insurance claim?

When you purchase an insurance policy (life insurance, disability insurance, homeowners insurance or other) you are entitled to the full benefits of the policy if you have a covered claim. If the insurance company refuses to pay or delays your payment, you may have a bad faith insurance claim.

Can an insurance company deny my claim?

Yes, an insurance company has the right to deny your claim if you have reneged on your end of the contract, or if the claim is fraudulent or not covered by the policy. Bad faith occurs when the insurance company’s conduct is egregious.

What if I’m offered an unreasonably low payment by my insurance company?

If an insurance company intentionally offers a “low ball” settlement, far lower than what is reasonable, they could be acting in “bad faith”.

What can I recover if I sue my insurance company for “bad faith”?

If the Court finds the insurance company wrongfully denied your claim, you would be eligible to recover the benefits of the policy for the claim, and possibly consequential losses and damages suffered for emotional distress, lost income and attorney fees. In some cases where the Insurer has exhibited flagrant, intentional and/or gross misconduct, punitive damages are awarded.

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