How Long It Can Take to Settle a South Carolina Nursing Home or Assisted Living Facility Injury or Wrongful Death Case and the Process It Takes to Get a Settlement

If your mom, dad, or another loved one got hurt or suffered wrongful death at a South Carolina nursing home or assisted living facility, you’re right to wonder how long it will take to get a settlement. It’s natural. Everyone wants swift justice. It’s compassionate because you know all too well time is running short for your beloved, elderly family member. It’s human because the legal system is foreign to non-lawyers, and knowing how long you might have to live with its stress can give you peace of mind.

The answer to your question is, it depends. I found the better way to address this concern is to give you an overview of the major phases of South Carolina nursing home and assisted living facility neglect cases. That way, you can have an idea of the legal process you’re confronting and what to expect. A case can settle at any time if it’s the wise thing to do.

Speaking of peace of mind, believe it or not, one of the best ways for a family member to ease worry about the legal process is to get questions answered by a professional. I’m a Spartanburg, South Carolina nursing home and assisted living facility neglect and abuse lawyer. My firm works hard to make everything easy for you. Call me toll-free at (864) 582-0416 or fill out a Get Help Now form.

I’ll get right to the most important, maybe least favorite point of anyone in these cases: you can’t successfully pursue it without a nursing home or assisted living facility neglect attorney. These cases virtually require a lawsuit and an expert witness to back up your allegations. You are telling a facility they failed in the number one purpose of their business: keeping a vulnerable, elderly resident safe. Even worse, you’re seeking a settlement of a lot of money to make up for that failure. Nothing will be paid without a tough fight.

While you wait to take legal action, the deadline to do that continues to run. It’s called the “statute of limitations.” When it expires, all legal rights in the case are lost forever.

You might as well get an experienced fighter you trust on your side now because you need to do it anyway.

Now consider the different phases of a South Carolina nursing home or assisted living facility case and the impact these phases can have on the duration of your case.

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Phase 1: Investigating the Facility’s Conduct

The first step in a South Carolina nursing home or assisted living facility injury or death case is investigating the facility. This includes:

• Contacting state authorities. In South Carolina, this is the South Carolina Department of Aging Long Term Care Ombudsman. It’s a state agency responsible for holding facilities accountable for legal and regulatory violations. Their authority is limited: all they can do is assess slight fines and demand operational changes to prevent it from happening in the future. It won’t compensate your loved one or family, if your loved one passed away. However, the ombudsman can be helpful If they find violations. To start that investigation, you’ve got to contact them. Expect an interview about your perspective of the event. After that, they start their investigation of the facility. You must stay in touch with them and make sure you understand when to expect to hear back from them. When you don’t, follow-ups are critical. Like many state agencies, the ombudsman is overburdened and bureaucratic. You can’t let their investigation slip through the cracks.
• Getting facility records. You’ll have to request these from the facility. If an attorney asks for them, it tips the facility off; alarms sound, wagons circle, and unnecessary delays and denials ensue. It’s just better for you to get what you can from them instead. The facility probably won’t give you all the records, but we may be able to use that against them later. The records can give key evidence like:
  • A care plan, which can be used to determine whether the facility followed it or failed to change it if your mom or dad’s condition deteriorated.
  • Medication administration record- this can indicate whether the victim was safely and properly medicated.
  • Safety precautions taken- or not. The records can show whether the facility installed bed alarms for wandering or mobility-challenged residents or provided items to protect residents with mobility problems, like bed rails, or slip-proof socks. Failure to take these precautions can result in dangerous falls, resulting in serious injuries like hip fractures.
  • Resident monitoring records. These records may indicate whether staff checked on a resident regularly and helped with activities as needed.
  • Meal and drink records. This documentation may show whether the resident was properly fed and hydrated and provide evidence of the overall attention paid to a resident’s basic living needs.
  • Records of turning a bedridden resident. Establishing proper turning at regular intervals is critical in bedsore cases because failure to reposition causes them.
  • We give all this evidence to the expert witness we hire to determine whether we have a solid case to pursue.
• Finding and consulting with the right expert. South Carolina nursing home and assisted living facility neglect cases require an expert to prove that substandard care caused the injury or death of the resident. There’s no way around it, you just need an experienced attorney to find a good expert to help win the case. The expert must be qualified to testify about the failure of care, meaning experienced in the type of care the facility failed to give the resident. The expert must also be skilled in communication so she can clearly and convincingly testify about how the facility committed safety violations leading to your mom or dad’s harm.
• Getting all medical records and bills related to the injury or death. In injury cases, we can’t fully evaluate a settlement until we have all the medical bills and records addressing the injury caused by neglect or abuse. In cases of nursing home wrongful death, we need that evidence to evaluate the survival action aspect of the case.

Impact on case duration: expect 3-6 months or so. All the while, the clock continues to run on the legal deadline to file the case.

Phase 2: Starting the Lawsuit Process

The next part of a South Carolina nursing home or assisted living facility abuse case is starting the lawsuit process by filing a Notice of Intent to Sue. This is an official legal document that must be properly filed with the clerk of court. It notifies the facility and any other responsible parties of your intent to pursue a lawsuit against them. While it must contain many legal requirements, the most important is the expert’s affidavit. That is a sworn statement establishing how the facility broke safety rules to harm your loved one.

This kicks off the legal process. The facility must be properly and legally served. Then, it gets a chance to respond. After that, both sides can issue subpoenas to demand evidence.

Then, you’ve got to participate in pre-suit mediation required by South Carolina law. That’s a process where both sides hire a lawyer who’s experienced in these cases but doesn’t take a side. That lawyer is called a mediator. The mediator tries to get both sides to settle. At this stage, many times, it’s way too early to try to settle, so this is handled with a phone call.

Sometimes, through the experience and skill of a South Carolina assisted living facility neglect attorney, the parties can judge the strength of their cases early. If so, the mediation can be a strong effort by both sides to settle the case early.

Impact on duration: at least another 3-4 months. But some cases end there with a successful settlement.

If not, the case moves to the next phase.

Phase 3: Filing a Lawsuit

The next phase of a South Carolina nursing home or assisted living facility neglect case is filing the lawsuit. Legally, it’s called a “complaint.” The complaint sets forth the key allegations in the case against all responsible parties, the most important parts of which should be in the expert’s affidavit.

After it’s served the proper way on the facility’s attorney, he responds with an “answer.” It lists their defenses and maybe an explanation of how the incident occurred.

Because this phase features both parties filing written documents pleading for a court to do something for them, it’s also called the pleadings phase. Soon after, the case moves into the discovery phase.

Impact on duration: another 30-60 days.

Phase 4: Discovery

Once the pleadings are filed, the next step in a South Carolina nursing home neglect case is the discovery phase. Both sides use the legal process to discover the evidence in the case. It’s done in several ways:

• Written discovery. The parties send each other documents with questions, called interrogatories and requests for evidence, called requests to produce. Usually there’s a 30 day deadline to respond, but these can be extended for good reason.
• Depositions. This is out-of-court sworn testimony by key witnesses, including you. Both sides take depositions. They usually occur in an attorney’s office. While it’s not a court, witnesses are under oath just the same. A court reporter records testimony and produces it in a transcript. This becomes critical evidence in the case, as it gives both sides a preview of the testimony. It helps both sides assess the strengths and weaknesses of their case and set trial strategy.

Impact on duration: another 6-12 months. It takes this long because attorneys, facility staff, treating doctors, and victims’ families all have busy schedules to juggle.

After discovery ends, South Carolina court rules require another mediation.

Phase 5: Mediation

When both sides have the key evidence of the case, it moves to the next phase of a South Carolina assisted living facility neglect case, mediation. This time, it’s required by court rules before the case can be scheduled for trial. Unlike pre-suit mediation, both sides should have a solid idea of the strengths and weaknesses of their cases from all the evidence they’ve gathered through discovery. Attorneys call this type of mediation “full-blown mediation,” because both sides give their best effort to get it resolved.

For me, that means developing a detailed summary of our case to present to the mediator so he can assess a fair settlement in your case and justify it to the other side. It can run ten pages or more as I summarize the facility’s fault and the harm your loved one and, if it’s a death case, your family sustained.

I’m a little different in how I handle mediation. Unlike some Nursing home abuse victims’ attorneys and virtually all defense attorneys, I freely share our summary with the other side. There’s no better time for me to make them aware of the strength of our case so it can be presented to the necessary insurance company executives to gather up the money to pay your loved one or your family a fair settlement. Full-blown mediation to me means a full-blown attempt by me to achieve its purpose: settle the case for a fair amount.

This mediation can take an entire day as the mediator goes between the parties to try to settle it.

Impact on duration: another 60-90 days. But if mediation works, as it often does if the parties properly prepare and are honest with their clients in the evaluation of their case, the case is over with a successful settlement.

If mediation fails, the case moves to the trial phase.

Phase 6: Trial

When a settlement can’t be reached, the next step is the trial of a South Carolina nursing home neglect or assisted living facility case. Costs skyrocket as we pay for expensive treating doctor depositions and additional time spent by our paid experts to prepare for trial testimony. We prepare our witnesses for their testimony as well.

Trial doesn’t mean there’s no hope for settlement. A case can settle during any aspect of the trial, from jury selection to opening statements to witness testimony and even after closing arguments. Believe it or not, settlements can be reached as the jury deliberates.

Impact on duration: depending on where you are and the court’s schedule, including how often court is held where you live, most cases are eligible for the trial docket about 18-24 months after filing.

Make Sure Every Phase of Your Case Is Handled the Right Way – Get Professional Guidance

South Carolina nursing home and assisted living facility cases are notoriously hard-fought by facility insurance companies. They employ cunning executives and talented attorneys to delay, deny, and discourage cases from settling for a fair value.

Your mom, dad, or someone else you loved dearly has already been victimized by the facility. Don’t risk letting that happen again. Don’t forfeit your only chance to get justice for the one you love.