Contributory negligence is when an individual who has suffered an injury is determined to be somewhat responsible for their own injuries. In Florida, this tenet of the law allows the defendant to parcel off a portion of the liability due to the conduct of the individual who is filing an injury claim.
Regarding nursing home abuse cases in Clearwater specifically, it is very difficult to pawn off contributory negligence on an elderly person because when a nursing home takes care of an individual, it is their obligation and duty to protect that person. If the facility cannot protect and care for them, then they are obligated to notify the state or the family that they cannot handle this particular person so that they can find a facility that can handle them.
Impairments or Disabilities
If a person has physical, mental, and/or emotional impairments or disabilities, these cannot be used against them by an insurance company. Even though an insurance company may try, the reality is when a nursing home takes on someone, they take on that individual to care for them with all their particular individual ailments and conditions. A nursing home especially has an obligation because they are being paid to manage a person’s life and if they cannot do that, then they should not take on that obligation in the first place.
Additionally, because the nursing home or the assisted living facility is obligated to provide a safe environment as well as dignity to an individual, they are obligated to ensure that the individual’s medical conditions or preexisting morbidities do not affect the facility’s ability to care for them; it is the facility’s obligation to make sure that they are capable of handling somebody’s care.
Defending Against Contributory Negligence
A lot of times, the nursing homes or the insurance companies that defend them will point to a particular resident’s failure to take their own medication, eat their own food, drink, or do the things that they are supposed to do to take care of themselves. When a person hears those accusations, the reality is that the person who is being cared for is no longer in a facility that is capable of handling their care.
If at some point there is an individual that is not taking their medication, is not going to therapy, and/or is not washing themselves, then it is the obligation of the facility to notify either the next of kin or the state, in some instances, and move that person to a more acute care facility.
A lawyer that has experience dealing with nursing homes and assisted living facilities cases can tell that the arguments about contributory negligence are nothing more than smokescreens for the facility to hide behind in order to dissipate their duty and try to throw it back on the resident.
How a Lawyer Can Help
In Florida, an attorney can use their knowledge of the statutes that govern the nursing homes and the assisted living facilities in the area. They can recognize that they can search a particular facility or a particular caregiver’s history to make sure that there is not a course of conduct that it is reoccurring.
Additionally, an attorney familiar with these types of cases can know how to set up claims and how to protect not only the resident, but also the family members of the resident from retaliation.