Settlement or trial?

We asked J. Niley Dorit, a California attorney and member of the Advocate Law Group whose practice consists of elder and dependent neglect, elder and dependent abuse, medical malpractice and general personal injury cases, to provide the details. He gave us his opinion, "I would say that cases with clear or compelling evidence of neglect almost invariably settle and do not go to trial. In my experience, because we do thorough investigations before we make claims, our settlement rate is very high because the results of our investigation lead us to giving advice to our clients as to whether they should pursue a claim or not."

"If we've decided to pursue a claim, it's because there is strong evidence in favor of that claim. By the same token, the facility at the other end of that claim has a problem and it needs to be addressed – which is often done through settlement."

Jury reactions to elder and dependent abuse cases

When a case does go to trial, Dorit says that juries are often sympathetic to victims. He explained, "When we look at published jury verdicts in California, it's clear that juries understand that these groups of people are at the mercy of others for their basic needs. They also seem to recognize that there is a problem in California with providing for those basic needs because caregivers are either poorly or inadequately trained and that facilities are understaffed. They simply haven't hired enough people to take care of the number of patients or residents that they have on hand and that plans just aren't implemented. They might look good on paper, but unless somebody's actually supervising what's happening at the bedside on at least a daily or weekly basis, there is no safety net for recurring problems. I think juries are sensitized to it, they understand it and they react accordingly."

Required evidence

Every lawsuit, whether it is resolved by settlement or trial, requires a certain amount of evidence to prove the allegations of neglect or mistreatment. Dorit explained what is typically required in elder and dependent abuse cases, "The most important evidence is the daily records for residents or the medical records for patients at skilled nursing facilities. Likewise, if the State of California has done an investigation, or has been asked to do an investigation, its report becomes very valuable because it will interview the people involved. The State's conclusions about its investigations become very important."

"And last, but certainly not least, what the family has to say about what they've noticed, what they've heard, what they've seen, what others have said is very important as well. The stories that families tell us about what's gone on with their loved ones are really valuable evidence to us when paired up with the written evidence in the case."

If you or a loved one has been the victim of elder or dependent care abuse or neglect, contact an attorney whose practice focuses in this area of law. For a free, no-obligation consultation with a qualified attorney, please click here.