Nursing home attorneys often employ a tactic known as an affirmative defense. In short, an affirmative defense is raised when a defendant admits that the injury did occur but offers a legal argument as to why they should not be legally responsible.
Affirmative defenses in Maryland nursing home abuse cases can derail many plaintiffs’ otherwise powerful cases. Experienced attorneys could anticipate these tactics in order to help clients and strengthen their chances in court.
Admitting that an Injury Did take Place Despite Best Efforts
The core of any nursing home injury case is a physical harm. Often the presence of these injuries is indisputable. However, a plaintiff needs to prove more than just an injury to win their case. A plaintiff must also prove that the nursing home’s negligence proximately caused the injury.
A common defense is for the nursing home to argue that they met their standard of care. This standard of care is provided by law under Code of Virginia §8.01-581.20. In essence, the nursing home will admit that an injury did occur but provide evidence tending to show they did everything that they could to prevent it.
Plaintiffs should be prepared to refute this concept by gathering evidence of long-lasting neglect and work with experts who can testify as to how the procedures used by the nursing home caused the injury.
Arguing that an Injury was Made Worse by the Plaintiff
Another common tactic used by defense attorneys is to argue that the plaintiff did not act quickly enough to mitigate their damages. This commonly occurs when a plaintiff alleges that the nursing home participated in a long-term pattern of abuse that resulted in a long-lasting injury or death, but did not take action against such abuse sooner.
While it may seem counterintuitive, defendants can argue that the plaintiff knew or should have known that the abuse was taking place. Because they did not speak up sooner or file the case earlier, they allowed this injury to become much worse. Defendants will often resort to this tactic in an attempt to lessen their monetary liability in nursing home abuse cases.
Plaintiffs can fight back against this argument by demonstrating the efforts that a nursing home undertook to hide the truth about the injury. Many cases alleging institutionalized abuse or neglect will also involve the introduction of evidence that the defendant attempted to cover up the injury. This can include phony incident reports or falsified doctor notes. A Maryland nursing home abuse lawyer could help clients to pursue their claims for their full value.
Affirmative Defenses in Maryland Nursing Home Abuse Cases Could Damage Your Claim
An affirmative defense is a way for a defendant nursing home to admit that an injury did happen while at the same time limiting their liability. In essence, they argue that due to a mistake by the plaintiff, or because they could not possibly have prevented the injury, they are not legally responsible to provide compensation.
An attorney who is well versed in the available Maryland nursing home abuse case affirmative defenses could help. An attorney works to pursue all allegations of nursing home abuse while remaining aware of the various tactics used by defendants to limit or reduce their liability. Contact an attorney today to see how they could help you.
