Frequently Asked Questions

Below are some initial questions many clients have when they first contact Williamson & Lavecchia, L.C.. The questions below can address many initial concerns you may have. If you don't find the answers here, you may contact us for answers to more complex questions or questions specific to your case. The initial consultation is free.

Defective Products

• Can I file a lawsuit if the product was regulated by federal law?
• Who Can Be Sued?
• How Safe Must Products Be?
• Must Products Have Warnings?
• What About Warranties?
• Do I Have to Give Notice of Breach of Warranty?
• What If I Am Injured By The Product While I Was Misusing It?
• Is a Product "Defective" Because It Harmed Me?
• How Long Can I Wait To Bring a Lawsuit?
• What If I Didn't Buy the Product?
• What If The Product Was Not Bought New, But Rather Was Bought Used?
• Are These Types of Cases Simple?

Retained Objects From Surgery

• What is the mortality rate for unintended retained foreign objects?
• What is the statute of limitations for a retained foreign object?

Medical Malpractice

• What must I prove in my case?
• I have a very bad result. Does that mean that I have a case?
• Do I have a good case?
• What is a statute of limitations?
• How much can I recover for my injuries?
• Will my case settle?
• Do I need to have an expert witness certify that the case has merit prior to serving a medical malpractice lawsuit?
• What is the "standard of care"?
• Who are health care providers?

Managed Care Abuse & Insurance Company Misconduct

• What is an HMO?
• What is a PPO and how does it differ from an HMO?
• What is capitation and how might it affect the care I receive from my primary care physician?
• Are there other HMO restrictions or incentives for doctors to ration health care?
• What is utilization review?
• What is ERISA and how does it relate to my health insurance?
• What plans are excluded from ERISA preemption?
• What should I do if I have been denied treatment under my health plan?
• What are my legal rights if I have been injured because my insurance company wrongfully denied medical treatment?

Elder Abuse

• Who regulates adult homes?
• What is the difference between a nursing home and an adult home/assisted living facility?
• What is the difference between residential living and assisted living at an adult home?
• Questions to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?
• Is an adult home legally responsible for criminal acts against its residents?
• Should an adult home be restraining its residents?
• What rights do residents have in an adult home?
• Is there a cap on damages that may be collected against adult homes?
• Is there a time limit for filing suit against an adult home?
• Can I file a lawsuit on behalf of a family member who was injured at an adult home?
• How can I select the right nursing home?
• Key questions to ask when visiting a nursing home or adult home?
• Are nursing homes required to have written policies and procedures and do I have a right to review them?
• How can the elder abuse lawyers at Williamson & Lavecchia assist me?
• Who regulates adult homes?
• What is the difference between a nursing home and an adult home/assisted living facility?
• What is the difference between residential living and assisted living at an adult home?
• Questions to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?
• Is an adult home legally responsible for criminal acts against its residents?
• Should an adult home be restraining its residents?
• What rights do residents have in an adult home?
• Is there a cap on damages that may be collected against adult homes?
• Is there a time limit for filing suit against an adult home?
• Can I file a lawsuit on behalf of a family member who was injured at an adult home?
• How can I select the right nursing home?
• Key questions to ask when visiting a nursing home or adult home?
• Are nursing homes required to have written policies and procedures and do I have a right to review them?
• How can the Elder Abuse Law Center at Williamson & Lavecchia assist me?

Defective Products

• Q: Can I file a lawsuit if the product was regulated by federal law?
  
  A: In certain cases, federal regulations "pre-empt" Virginia law, meaning that your rights and remedies are controlled by federal regulations. It is important that your attorney has a thorough understanding of the "pre-emption doctrine." For more information on the pre-emption of products liability actions, please read the essay by Tom Williamson in our Library.
• Q: Who Can Be Sued?
  
  A: Depending on the specific facts which apply to your situation, in Virginia, it may be possible to bring a lawsuit against the designer of the product, the manufacturer, the distributor, the wholesaler, or the seller of the product.
• Q: How Safe Must Products Be?
  
  A: Under Virginia law, a product must be reasonably safe for the purposes for which it is intended and for its reasonably foreseeable uses. Products are not required, however, to be designed or produced with features representing the ultimate in safety. See below for information on warnings and warranties.
• Q: Must Products Have Warnings?
  
  A: If a product is inherently dangerous and the danger is not obvious, the supplier must adequately warn of the foreseeable risks of using the product. If the supplier fails to warn of such risks, a claim can be brought for the failure to warn. If the danger is obvious, there is no duty to warn.
• Q: What About Warranties?
  
  A: Many products come with express warranties. In some circumstances, statements made about the quality or characteristics of a product in advertising literature or sales negotiations will be deemed to be an express warranty. If you are harmed by a product because of a feature that did not live up to its warranty you may have a valid claim. In addition, in most sales and leasing situations, a warranty is implied that the product is reasonably safe for its intended use and other reasonably foreseeable purposes. If a product is sold or leased is unreasonably dangerous, then there is a breach of this implied warranty and you may have a valid claim.
• Q: Do I Have to Give Notice of Breach of Warranty?
  
  A: Virginia law requires a buyer to notify the seller of a product of any product defect within a reasonable time after the buyer discovers or should have discovered the defect. This requirement does not apply to non purchasers of the product who are injured by the product.
• Q: What If I Am Injured By The Product While I Was Misusing It?
  
  A: Manufacturers must warn you of dangers associated with a misuse of the product only if the misuse is foreseeable. If the misuse was not foreseeable, there is no duty to warn of the danger of misusing the product. For example, a Court has ruled that a manufacturer should have foreseen that an infant would ingest furniture polish.
• Q: Is a Product "Defective" Because It Harmed Me?
  
  A: Just because you have been injured does not mean the product is defective. There must also be negligence or breach of warranty by the defendant(s) for you to have a pursuable claim.
• Q: How Long Can I Wait To Bring a Lawsuit?
  
  A: In Virginia, a person injured by a defective product usually has two years from the date of injury to file a lawsuit. If a lawsuit is filed after that time it may be dismissed by the Court for being filed too late. There are several exceptions to this two year statute of limitations which apply in various situations. For example, if the injured person is a minor or is mentally incompetent, the period for bringing suit may be extended. It is best to contact an attorney as soon as possible after an injury to determine the length of time available to file a lawsuit.
• Q: What If I Didn't Buy the Product?
  
  A: In the past, if the injured person was not also the purchaser of the product the injured person was not permitted to bring a lawsuit. However, the law has been changed. Now, you are not prevented from bringing a lawsuit simply because you did not buy the defective product yourself.
  
  Likewise, you are not prevented from bringing a products liability lawsuit just because you leased the product rather than having bought it.
• Q: What If The Product Was Not Bought New, But Rather Was Bought Used?
  
  A: You can still bring a claim even if the product was not bought new.
• Q: Are These Types of Cases Simple?
  
  A: Lawsuits brought against companies who have designed, manufactured, distributed, or sold products are often difficult. These types of cases often involve complex scientific and technical matters requiring a thorough understanding of not only the law which applies, but also the science and technology involved in the design and manufacturing processes. Our lawyers are experienced in dealing with such complex scientific and technological issues and enjoy the challenge of becoming knowledgeable in these areas in order to best represent our clients.

Retained Objects From Surgery

• Q: What is the mortality rate for unintended retained foreign objects?
  
  A: There are no conclusive studies on the mortality rate. However, the Agency for Healthcare and Research found that the average patient spent an additional four days in the hospital because of the error and fifty-seven patients died in 2000 due to retained foreign objects.
• Q: What is the statute of limitations for a retained foreign object?
  
  A: Virginia has a two year statute of limitations. In the case of retained foreign objects it is extended for up to one year after the error was discovered or after the patient should have known of the error.
  
  Some retained foreign objects can go undetected for years. The statute of limitations is never extended for more than 10 years from the date of injury. Therefore you should not delay seeking legal counsel.

Medical Malpractice

• Q: What must I prove in my case?
  
  A: At trial, the plaintiff has the burden of proof. The plaintiff must prove all of the following: (1) the standard of care in effect at the time of the alleged malpractice; (2) that the defendant health care provider breached the standard of care; (3) that as a direct result of the breach(es) in the standard of care, the plaintiff was injured; and (4) what injuries (damages) were suffered as a result. If the plaintiff fails to prove any of these elements, then the Judge presiding over the trial may prevent the case from going to the jury for deliberations.
• Q: I have a very bad result. Does that mean that I have a case?
  
  A: Having a very bad result does not mean that malpractice was committed. A bad result can happen even if the doctor or other health care provider complied with the standard of care. The only way to determine whether a bad result is due to negligence is by close examination of the facts, which usually requires review of the appropriate medical records and consultation with an expert.
• Q: Do I have a good case?
  
  A: One of the most frequently asked questions we encounter from a potential client during the initial client contact is whether he has a good case. Usually there is no way to evaluate the merits of a potential case until after the medical records are obtained and closely reviewed. Generally speaking, most cases have facts which "cut both ways," meaning that there are facts which also help the health care provider defend the claim. Under Virginia law, expert testimony is required to prove a medical malpractice case. Hence, the strength of the case hinges upon the facts that will be in evidence and the testimony of the expert witnesses. Even "good" cases can be lost if the jury tends to believe the version of the facts presented by the defendant health care provider. Nevertheless, after a potential case has been closely evaluated, an attorney may be able to provide an opinion regarding the merits of a case and its probability of success in litigation.
• Q: What is a statute of limitations?
  
  A: A statute of limitations is an arbitrary time period that a state places on a claim, setting forth a deadline by which a claim must be filed. Unless a claim is filed within the applicable statute of limitations, it will be time-barred. If a claim is time-barred, there can be no legal recovery.
  
  In Virginia, all medical malpractice actions for personal injury must be filed within two years from the date the cause of action "accrues." Va. Code Ann. § 8.01-243. Simply stated, the cause of action usually "accrues" on the date that malpractice was committed. Virginia does have a doctrine called the "continuing treatment rule" which may extend the statute of limitations period. Under the continuing treatment rule, if there has been substantially uninterrupted treatment by the defendant, then suit must be filed within two years of the date of last treatment by the defendant health care provider for the same or a related condition.
  
  If the malpractice causes death, then the wrongful death statute of limitations applies. Wrongful death actions must be filed within two years of the date of death. Va. Code Ann. § 8.01-244.
  
  Virginia has a special statute of limitations period governing medical malpractice actions of minors. If a child is under eight years of age, suit must be commenced by the child's tenth birthday. For children eight years of age or older, suit must be commenced within two years of the date malpractice was committed. Va. Code Ann. § 8.01-243.1.
  
  If the defendant is an agent of the Commonwealth of Virginia, such as employees of one of the teaching hospitals in Virginia, then the claim will need to be pursued under the Virginia Tort Claims Act. This Act has specific administrative requirements which must be followed for the claim to be actionable, including a mandatory notice requirement. In addition, recovery under the Virginia Tort Claims Act is limited to one hundred thousand dollars ($100,000.00).
  
  In Virginia, certain circumstances may extend the statute of limitations. These circumstances include fraud or concealment preventing discovery of the injury, incapacity of the victim and a foreign object being left in a patient without the patient's knowledge. It is best to consult an attorney as soon as you suspect you may have a case because of the statute of limitations.
• Q: How much can I recover for my injuries?
  
  A: The Commonwealth of Virginia imposes a damage cap on all recoveries for bodily injury or death in medical malpractice cases. Va. Code § 8.01-581.15. Cases arising before August 1, 1999 are subject to a one million dollar damage cap. For cases arising between August 1, 1999 and June 30, 2000 the damage cap is 1.5 million dollars. For cases arising after June 30, 2000, the cap increases as follows:
  
  July 1, 2000 through June 30, 2001 - $1,550,000.00.
  
  July 1, 2001 through June 30, 2002 - $1,600,000.00.
  
  July 1, 2002 through June 30, 2003 - $1,650,000.00.
  
  July 1, 2003 through June 30, 2004 - $1,700,000.00.
  
  July 1, 2004 through June 30, 2005 - $1,750,000.00.
  
  July 1, 2005 through June 30, 2006 - $1,800,000.00.
  
  July 1, 2006 through June 30, 2007 - $1,850,000.00.
  
  July 1, 2007 through June 30, 2008 - $1,925,000.00.
  
  After June 30, 2008 - $2,000,000.00.
  
  Virginia also imposes a limit on the amount of punitive damages that can be recovered. Punitive damages are capped at three hundred fifty thousand dollars ($350,000.00). Va. Code § 8.01-38.1. In medical malpractice cases, the punitive damages recovery must be contained within the medical malpractice cap. In other words, the damage caps set forth above represent the maximum recovery even if punitive damages are awarded in addition to compensatory damages.
• Q: Will my case settle?
  
  A: In medical malpractice cases, it is difficult to predict whether a case will settle. Typically, such cases are rigorously defended. Those cases that do settle usually settle close to the trial dates. Thus, it is usually best to anticipate that your case will go to trial.
• Q: Do I need to have an expert witness certify that the case has merit prior to serving a medical malpractice lawsuit?
  
  A: In most medical malpractice cases, the plaintiff must have a certificate of merit from a qualified expert that the defendant breached the standard of care and that the breach of the standard of care caused the claimed injury. The plaintiff must have a certificate of merit prior to requesting service of the lawsuit upon the defendant.
  
  A certificate of merit is not required when the plaintiff has a good faith belief that expert testimony is not necessary because the defendant's negligence clearly lies within the jury's common knowledge and experience.
  
  With the requirement that a plaintiff obtain a certificate of merit, it is very important that victims of medical malpractice hire an attorney promptly so the attorney will have ample time to thoroughly investigate the case and obtain the necessary expert certification.
  
  For more information about filing certificates of merit, please read the "Medical Malpractice Legislation Update" in our Library authored by Josh Silverman.
• Q: What is the "standard of care"?
  
  A: In Virginia, the "standard of care" is defined by statute. The "standard of care by which the acts or omissions [alleged malpractice] are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth. . . . " Va. Code Ann. § 8.01-581.20. The specific standard of care at the time the alleged malpractice was committed is established by expert witness testimony.
• Q: Who are health care providers?
  
  A: In Virginia, health care providers are defined by statute. The statutory definition is broad and includes any person, corporation, facility or institution licensed by Virginia to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed dental hygienist or health maintenance organization. The statutory definition also includes nursing homes, professional corporations, partnerships, limited liability companies whose members are licensed health care providers or which employ licensed health care providers and primarily render health care. See Va. Code Ann. § 8.01-581.1.

Managed Care Abuse & Insurance Company Misconduct

• Q: What is an HMO?
  
  A: An HMO or Health Maintenance Organization is a pre-paid health plan that consists of an association of health care professionals and facilities. Members of an HMO choose a primary care physician (PCP) from a limited list of physicians who coordinates their care. The PCP determines how, when, and where you will be treated as well as what hospitals or specialists you may see. The HMO provides strong financial incentives to the PCP to minimize the amount of health care provided to the patient.
• Q: What is a PPO and how does it differ from an HMO?
  
  A: PPO stands for Preferred Provider Organization which consists of a group of health care professionals who provide care to a specified group of patients. Patients in a PPO typically have greater choice in selecting care providers than they would have in an HMO. Unlike most HMOs, the patient often has the right to obtain services outside of the list of providers, but the patient may pay a higher fee.
• Q: What is capitation and how might it affect the care I receive from my primary care physician?
  
  A: Capitation is a method of compensating a physician employed by HMOs. The physician receives a flat preset amount per patient per month. The physician receives the same amount whether they see the patient once or many times. All too often this structure results in the rationing of medical care in order to reap higher profits for the physician and the HMO.
• Q: Are there other HMO restrictions or incentives for doctors to ration health care?
  
  A: Some HMOs give doctors incentives and bonuses for not ordering tests or referring patients to specialists.
• Q: What is utilization review?
  
  A: Another cost saving method employed by health insurers is the utilization review process where nurses retained by the insurer oversee health care decisions. In some cases a nurse may refuse to cover treatment or a referral to a specialist even if your physician has determined that it is medically necessary.
• Q: What is ERISA and how does it relate to my health insurance?
  
  A: ERISA stands for the Employee Retirement Income Security Act of 1974. ERISA governs most employee benefits including health benefits. While ERISA was originally intended to protect employee rights, it has adversely effected employees' rights to quality health care by limiting damages to the delivery of benefits. Under ERISA you have the right to sue for benefits wrongfully denied and you may be able to collect attorney's fees for the cost of your suit. You may also sue for a declaratory judgment to clarify your rights to future benefits. However, many courts have found if an insurance company wrongfully determines that you do not require a certain treatment like an MRI, psychiatric care, or a referral to a specialist, the insurer is not liable for your injuries even if you can prove that the insurer negligently caused your injuries. In many cases this has meant that injured patients and families who have lost loved ones due to an insurer's negligent denial of medical care have no remedy. However, some attorneys have successfully obtained a recovery for their clients through innovative legal theories. The paper "Piercing the Armor: Approaches to Managed Care Liability" discusses approaches for holding managed care providers liable for their negligence and can be found in our Cyber Library.
• Q: What plans are excluded from ERISA preemption?
  
  A: If you are employed by the government or through a church health plan you may be excluded from ERISA pre-emption and you may have broader remedies than if your are insured through other types of employment. It is important to let an attorney review your policy and your employment situation to determine your rights.
• Q: What should I do if I have been denied treatment under my health plan?
  
  A: First and foremost you should read your insurance policy. Your policy may impose deadlines for appealing the denial of benefits. You are strongly encouraged to consult an attorney knowledgeable in managed care liability to review your policy and to advise you on appealing the denial of benefits. If you are not successful on appeal, your attorney can advise you on whether you should file a lawsuit to compel the insurance company to provide benefits under the policy. Under ERISA you may be able to recover your attorney's fees.
• Q: What are my legal rights if I have been injured because my insurance company wrongfully denied medical treatment?
  
  A: Many patients have suffered severe injuries and some patients have died because their insurance company refused to refer them to a specialist or denied medically necessary treatment. If you believe you have been injured or have lost a loved one because an insurance company denied treatment you should contact an attorney immediately. If you delay the statute of limitations may forever bar your claim. Your attorney will investigate whether you are insured through an ERISA plan. Remember not all health plans are covered by ERISA. If you are insured through an ERISA plan you need an attorney knowledgeable about ERISA and the evolving legal theories to successfully recover for your injuries or the loss of a loved one.

Elder Abuse

• Q: Who regulates adult homes?
  
  A: Adult homes (assisted living facilities) are regulated by the Virginia Department of Social Services. Unlike nursing homes, adult homes are not subject to the strict federal regulations. To protect against elder abuse and neglect, the Virginia Department of Social Services conducts random inspections of assisted living facilities. However, in many cases abuse and neglect goes unreported and government attention to these adult homes is widely scattered.
  
  Attorneys investigating cases of abuse and neglect at adult homes must have a working knowledge of the regulations of the Virginia Department of Social Services. Facilities that violate the regulations may be liable for injuries or death.
  
  Click here to learn more about legal remedies against adult homes.
• Q: What is the difference between a nursing home and an adult home/assisted living facility?
  
  A: An adult home is by law a facility intended to provide minimal to moderate assistance with daily activities like bathing, dressing, and use of a bathroom. The adult home may provide medication if there are qualified persons on staff. They commonly provide both long term and short term (respite) care. Adult homes are regulated by the Virginia Department of Social Services. Additionally they must comply with the local building codes. The building inspectors office may conduct inspections of the facility. Adult homes are generally funded by grants from the local government or through private funds.
  
  A nursing home provides healthcare to its patients. Nursing homes are subject to much stricter federal and state regulations and must be staffed with nurses. The Virginia Department of Health is responsible for ensuring that nursing homes comply with these regulations. They are subject to both announced and unannounced inspections, however, the inspectors are not able to catch all violations of health and safety regulations and unfortunately many cases of elder abuse and neglect goes unreported.
  
  You are invited to learn more about legal remedies against nursing homes and adult homes for abusing and neglecting the elderly at our Elder Abuse and Neglect website.
• Q: What is the difference between residential living and assisted living at an adult home?
  
  A: Both residential and assisted living facilities are regulated by the Virginia Department of Social Services and must meet certain standards. Residential living is for adults who require only minimal assistance with activities of daily living. Assisted living facilities are for residents who require a moderate or more intense level of assistance with activities including medication, bathing, eating, and dressing. An assisted living facility must provide staff with specialized training. The facility may be liable if it fails to provide sufficient numbers of trained staff members.
  
  Click here to learn more about legal remedies against adult homes.
• Q: Questions to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?
  
  A: It is important that your attorney has a working knowledge of the rules and regulations of adult homes. These rules set forth minimal standards and the adult home may be held liable for violating these standards. These standards include staff qualifications, quality of food, emergency procedures, social activities for the residents, and quality living conditions. Additionally, there are statutes and court rulings that may affect your rights. It is essential that your attorney be familiar with these laws and court rulings
  
  Adult homes are also required to comply with the local building codes. Unfortunately many facilities are in poor condition. In some cases, adult homes have ignored repeated citations for building code violations like failure to provide sufficient heat and ventilation, safe entrances, and secure windows. Your attorney should be familiar with these regulations and how they apply to adult homes.
  
  Attorneys Carolyn Lavecchia and Josh Silverman represent victims of abuse and neglect at adult homes. Please visit our Elder Abuse and Neglect website for more information.
• Q: Is an adult home legally responsible for criminal acts against its residents?
  
  A: Tragically residents of adult homes have been victims of criminal acts including physical, emotional, and even sexual abuse by the employees of the adult home who are entrusted with their protection. To prevent dangerous persons from becoming employed at adult homes, they are required to conduct criminal background checks on all of their employees. This is especially important because many residents of adult homes are physically and mentally vulnerable to abuse.
  
  If the adult home fails to conduct a criminal background check and a resident is victimized by an employee with a criminal record the facility may be legally liable. Additionally, if the adult home has reason to believe that its employees are dangerous and the facility does not take steps to protect its residents it may be liable. For added protection the adult home is also required to check at least two references for every employee.
  
  The bottom line is that the adult home must make reasonable attempts to protect its vulnerable residents.
• Q: Should an adult home be restraining its residents?
  
  A: It is illegal for certain adult homes to use physical or chemical restraints to control residents except in emergency situations. Restraints are extremely dangerous to residents. In addition to severe psychological effects of restraints, the use of restraints has a high incidence of severe injuries and even death. The attorneys at Williamson & Lavecchia, L.C. have successfully recovered damages against nursing homes for physically restraining and abusing residents.
• Q: What rights do residents have in an adult home?
  
  A: 1. Right to be encouraged and informed of appropriate means to exercise their rights as a resident and citizen.
  
  2. Right to manage their own money.
  
  3. Right to voice grievances and request changes in policies and services at the facility without risk of retaliation.
  
  4. The right to have daily visitors in the facility and reasonable visits away from the adult home.
  
  5. The right to have their personal affairs and records treated confidentially.
  
  6. They can not be compelled to perform services for the adult home.
  
  7. The right to be free from mental, emotional, physical, sexual and economic abuse and exploitation.
  
  8. The right to be treated with dignity, courtesy and respect at the adult home.
  
  Click here for a complete list of resident rights as provided by Virginia law.
• Q: Is there a cap on damages that may be collected against adult homes?
  
  A: The Virginia Supreme Court held in the decision of Commercial Distributors v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990) that assisted living facilities are not subject to Virginia’s medical malpractice cap. Therefore, under current interpretation of the law there is no cap on compensatory damages.
• Q: Is there a time limit for filing suit against an adult home?
  
  A: Generally, a lawsuit must be filed within two years of the resident’s injury or death. However there are exceptions to this rule. Under some circumstances the period may be lengthened if the resident is legally incompetent. If the facility is owned by a government agency there are specific requirements for filing a notice of claim and in some cases the notice of claim must be filed within 6 months of the resident’s injury or death. Therefore, it is important that you contact an attorney as soon as possible. Many attorneys will not accept a case if you are close to a deadline.
• Q: Can I file a lawsuit on behalf of a family member who was injured at an adult home?
  
  A: If your family member who was injured is competent, the lawsuit will normally be filed in his or her own name. However, if you have a durable power of attorney or are the legally appointed guardian then in most cases you can file the lawsuit on his or her behalf. The attorneys at Williamson & Lavecchia, L.C. can assist you in preparing a guardianship petition when it is necessary to file a claim on behalf of an injured or abused person who is not legally competent.
• Q: How can I select the right nursing home?
  
  A: Selecting a nursing home is never easy. Fortunately, new information about nursing homes recently has become available on the Internet. Medicare provides a useful 59 page guide for choosing a nursing home that can be viewed online.
  
  In Virginia, you can contact the Center for Quality Healthcare and ask for copies of surveys and copies of prior complaints made against the nursing home. The Center for Quality Healthcare may charge a modest fee for copying. Under the Virginia Freedom of Information Act, they must provide these documents within five business days
  
  In addition to the above suggestions, there are professional healthcare consults who can assist you in locating an appropriate nursing home. They will charge a fee for their services.
  
  For more information about research nursing homes visit our Elder Abuse and Neglect website.
• Q: Key questions to ask when visiting a nursing home or adult home?
  
  A: What is the staff to resident ratio on each shift?
  
  Does the facility provide the religious, cultural and social programs that will interest the resident
  
  What fees does the facility charge? Upon request the facility should provide a written fee schedule.
  
  What type of security does the adult home or nursing home have in place to keep dangerous people out and to keep residents from wandering away?
  
  Does the facility have arrangements with local hospitals and doctors for emergencies?
  
  For nursing homes, is it accredited by the Joint Commission on the Accreditation of Healthcare Organizations
  Medicare provides a checklist with these and other important questions that you should consider in selecting a nursing home.
  
  Once you have selected a facility, you should remain diligent. Visit your loved ones often. Talk to the staff. Let them know that you are concerned and you want to remain informed their care. You should not be shy about thanking them for providing quality care and likewise complaining about anything less than quality care. You should try to visit the facility at different times of the day to check up on the care your loved one’s receive during different nursing shifts.
  
  Click here for more information on selecting a nursing home or adult home.
• Q: Are nursing homes required to have written policies and procedures and do I have a right to review them?
  
  A: Absolutely. All licensed nursing homes are required to have written policies and procedures for providing care to its residents. Their staff is required to be familiar with the policies and procedures and to comply with them. Unfortunately, many homes fail to do so and the results can be tragic. You have a right to review them and you should ask for a copy of the procedures. Do not tolerate care below those levels.
  
  Frequently after an injury occurs the facility denies that they are liable for providing care that does not even comply with its own policies and procedures. The attorneys at Williamson & Lavecchia, L.C. have successfully compelled nursing homes to provide this information in litigation.
• Q: How can the elder abuse lawyers at Williamson & Lavecchia assist me?
  
  A: The first thing that we will do is listen to you. We want to learn as much as possible about your loved one and what happened to him or her. We will need to know about his or her health, work history, and family. We will listen to you to learn what happened at the adult home or nursing home. Equally important, we will take the time to answer your questions. You may want to learn more about our background and experiences.
  
  While we can not guarantee specific results, we can discuss your legal options and our best prediction on how your case will be resolved. If we believe that we can be of assistance to you and you choose to hire us, we will each sign a retainer agreement giving us authority to represent you and setting forth our legal fee. For more information about our fees, visit our fee information page on our website.
  
  Once a retainer agreement is signed we can begin working for you. We will request copies of all the relevant medical records and the records of the adult home. In most cases we will obtain via the Virginia Freedom of Information Act (FOIA) all recent reports of abuse and neglect at the adult home or nursing home. We will also search court records to see if there have been similar cases against the adult home.
  
  If appropriate, we will interview former employees of the adult home to get a better picture of the adult home. We have found that former employees often paint a vastly different picture of the adult home than what is reported to the government investigators.
  
  After conducting an initial investigation, we will share with you our recommendations. In many cases we recommend filing a lawsuit. Only upon filing a lawsuit will we have an opportunity to review internal documents and to depose the staff and owners of the adult home. We also believe the best settlements are obtained after filing suit. Usually the trial is scheduled 10 months to a year after filing suit.
  
  For more information about legal remedies for victims of abuse and neglect at nursing homes and assisted living facilities visit our online Elder Abuse and Neglect website .
• Q: Who regulates adult homes?
  
  A: Adult homes (assisted living facilities) are regulated by the Virginia Department of Social Services. Unlike nursing homes, adult homes are not subject to the strict federal regulations. To protect against elder abuse and neglect, the Virginia Department of Social Services conducts random inspections of assisted living facilities. However, in many cases abuse and neglect goes unreported and government attention to these adult homes is widely scattered.
  
  Attorneys investigating cases of abuse and neglect at adult homes must have a working knowledge of the regulations of the Virginia Department of Social Services. Facilities that violate the regulations may be liable for injuries or death.
• Q: What is the difference between a nursing home and an adult home/assisted living facility?
  
  A: An adult home is by law a facility intended to provide minimal to moderate assistance with daily activities like bathing, dressing, and use of a bathroom. The adult home may provide medication if there are qualified persons on staff. They commonly provide both long term and short term (respite) care. Adult homes are regulated by the Virginia Department of Social Services. Additionally they must comply with the local building codes. The building inspectors office may conduct inspections of the facility. Adult homes are generally funded by grants from the local government or through private funds.
  
  A nursing home provides healthcare to its patients. Nursing homes are subject to much stricter federal and state regulations and must be staffed with nurses. The Virginia Department of Health is responsible for ensuring that nursing homes comply with these regulations. They are subject to both announced and unannounced inspections, however, the inspectors are not able to catch all violations of health and safety regulations and unfortunately many cases of elder abuse and neglect goes unreported.
• Q: What is the difference between residential living and assisted living at an adult home?
  
  A: Both residential and assisted living facilities are regulated by the Virginia Department of Social Services and must meet certain standards. Residential living is for adults who require only minimal assistance with activities of daily living. Assisted living facilities are for residents who require a moderate or more intense level of assistance with activities including medication, bathing, eating, and dressing. An assisted living facility must provide staff with specialized training. The facility may be liable if it fails to provide sufficient numbers of trained staff members.
• Q: Questions to ask when selecting an attorney to represent a loved one abused or neglected at an adult home?
  
  A: It is important that your attorney has a working knowledge of the rules and regulations of adult homes. These rules set forth minimal standards and the adult home may be held liable for violating these standards. These standards include staff qualifications, quality of food, emergency procedures, social activities for the residents, and quality living conditions. Additionally, there are statutes and court rulings that may affect your rights. It is essential that your attorney be familiar with these laws and court rulings
  
  Adult homes are also required to comply with the local building codes. Unfortunately many facilities are in poor condition. In some cases, adult homes have ignored repeated citations for building code violations like failure to provide sufficient heat and ventilation, safe entrances, and secure windows. Your attorney should be familiar with these regulations and how they apply to adult homes.
• Q: Is an adult home legally responsible for criminal acts against its residents?
  
  A: Tragically residents of adult homes have been victims of criminal acts including physical, emotional, and even sexual abuse by the employees of the adult home who are entrusted with their protection. To prevent dangerous persons from becoming employed at adult homes, they are required to conduct criminal background checks on all of their employees. This is especially important because many residents of adult homes are physically and mentally vulnerable to abuse.
  
  If the adult home fails to conduct a criminal background check and a resident is victimized by an employee with a criminal record the facility may be legally liable. Additionally, if the adult home has reason to believe that its employees are dangerous and the facility does not take steps to protect its residents it may be liable. For added protection the adult home is also required to check at least two references for every employee.
  
  The bottom line is that the adult home must make reasonable attempts to protect its vulnerable residents.
• Q: Should an adult home be restraining its residents?
  
  A: It is illegal for certain adult homes to use physical or chemical restraints to control residents except in emergency situations. Restraints are extremely dangerous to residents. In addition to severe psychological effects of restraints, the use of restraints has a high incidence of severe injuries and even death. The attorneys at Williamson & Lavecchia, L.C. have successfully recovered damages against nursing homes for physically restraining and abusing residents.
• Q: What rights do residents have in an adult home?
  
  A: 1. Right to be encouraged and informed of appropriate means to exercise their rights as a resident and citizen.
  
  2. Right to manage their own money.
  
  3. Right to voice grievances and request changes in policies and services at the facility without risk of retaliation.
  
  4. The right to have daily visitors in the facility and reasonable visits away from the adult home.
  
  5. The right to have their personal affairs and records treated confidentially.
  
  6. They can not be compelled to perform services for the adult home.
  
  7. The right to be free from mental, emotional, physical, sexual and economic abuse and exploitation.
  
  8. The right to be treated with dignity, courtesy and respect at the adult home.
  
  Click here for a complete list of resident rights as provided by Virginia law.
• Q: Is there a cap on damages that may be collected against adult homes?
  
  A: The Virginia Supreme Court held in the decision of Commercial Distributors v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990) that assisted living facilities are not subject to Virginia’s medical malpractice cap. Therefore, under current interpretation of the law there is no cap on compensatory damages.
• Q: Is there a time limit for filing suit against an adult home?
  
  A: Generally, a lawsuit must be filed within two years of the resident’s injury or death. However there are exceptions to this rule. Under some circumstances the period may be lengthened if the resident is legally incompetent. If the facility is owned by a government agency there are specific requirements for filing a notice of claim and in some cases the notice of claim must be filed within 6 months of the resident’s injury or death. Therefore, it is important that you contact an attorney as soon as possible. Many attorneys will not accept a case if you are close to a deadline.
• Q: Can I file a lawsuit on behalf of a family member who was injured at an adult home?
  
  A: If your family member who was injured is competent, the lawsuit will normally be filed in his or her own name. However, if you have a durable power of attorney or are the legally appointed guardian then in most cases you can file the lawsuit on his or her behalf. The attorneys at Williamson & Lavecchia, L.C. can assist you in preparing a guardianship petition when it is necessary to file a claim on behalf of an injured or abused person who is not legally competent.
• Q: How can I select the right nursing home?
  
  A: Selecting a nursing home is never easy. Fortunately, new information about nursing homes recently has become available on the Internet. Medicare provides a useful 59 page guide for choosing a nursing home that can be viewed online.
  
  Also, Medicare now provides summaries of reports on most nursing homes and a detailed checklist for rating nursing homes.
  
  In Virginia, you can contact the Center for Quality Healthcare and ask for copies of surveys and copies of prior complaints made against the nursing home. The Center for Quality Healthcare may charge a modest fee for copying. Under the Virginia Freedom of Information Act, they must provide these documents within five business days.
  
  In addition to the above suggestions, there are professional healthcare consults who can assist you in locating an appropriate nursing home. They will charge a fee for their services.
• Q: Key questions to ask when visiting a nursing home or adult home?
  
  A: What is the staff to resident ratio on each shift?
  
  Does the facility provide the religious, cultural and social programs that will interest the resident?
  
  What fees does the facility charge? Upon request the facility should provide a written fee schedule.
  
  What type of security does the adult home or nursing home have in place to keep dangerous people out and to keep residents from wandering away?
  
  Does the facility have arrangements with local hospitals and doctors for emergencies?
  
  For nursing homes, is it accredited by the Joint Commission on the Accreditation of Healthcare Organizations?
  
  Medicare provides a checklist with these and other important questions that you should consider in selecting a nursing home.
  
  Once you have selected a facility, you should remain diligent. Visit your loved ones often. Talk to the staff. Let them know that you are concerned and you want to remain informed their care. You should not be shy about thanking them for providing quality care and likewise complaining about anything less than quality care. You should try to visit the facility at different times of the day to check up on the care your loved one’s receive during different nursing shifts.
• Q: Are nursing homes required to have written policies and procedures and do I have a right to review them?
  
  A: Absolutely. All licensed nursing homes are required to have written policies and procedures for providing care to its residents. Their staff is required to be familiar with the policies and procedures and to comply with them. Unfortunately, many homes fail to do so and the results can be tragic. You have a right to review them and you should ask for a copy of the procedures. Do not tolerate care below those levels.
  
  Frequently after an injury occurs the facility denies that they are liable for providing care that does not even comply with its own policies and procedures. The attorneys at Williamson & Lavecchia, L.C. have successfully compelled nursing homes to provide this information in litigation.
• Q: How can the Elder Abuse Law Center at Williamson & Lavecchia assist me?
  
  A: Absolutely. All licensed nursing homes are required to have written policies and procedures for providing care to its residents. Their staff is required to be familiar with the policies and procedures and to comply with them. Unfortunately, many homes fail to do so and the results can be tragic. You have a right to review them and you should ask for a copy of the procedures. Do not tolerate care below those levels.
  
  Frequently after an injury occurs the facility denies that they are liable for providing care that does not even comply with its own policies and procedures. The attorneys at Williamson & Lavecchia, L.C. have successfully compelled nursing homes to provide this information in litigation.
  
  How can the Elder Abuse Law Center at Williamson & Lavecchia assist me?
  
  The first thing that we will do is listen to you. We want to learn as much as possible about your loved one and what happened to him or her. We will need to know about his or her health, work history, and family. We will listen to you to learn what happened at the adult home or nursing home. Equally important, we will take the time to answer your questions. You may want to learn more about our background and experiences.
  
  While we can not guarantee specific results, we can discuss your legal options and our best prediction on how your case will be resolved. If we believe that we can be of assistance to you and you choose to hire us, we will each sign a retainer agreement giving us authority to represent you and setting forth our legal fee. For more information about our fees, visit our fee information page on our website.
  
  Once a retainer agreement is signed we can begin working for you. We will request copies of all the relevant medical records and the records of the adult home. In most cases we will obtain via the Virginia Freedom of Information Act (FOIA) all recent reports of abuse and neglect at the adult home or nursing home. We will also search court records to see if there have been similar cases against the adult home
  
  If appropriate, we will interview former employees of the adult home to get a better picture of the adult home. We have found that former employees often paint a vastly different picture of the adult home than what is reported to the government investigators.
  
  After conducting an initial investigation, we will share with you our recommendations. In many cases we recommend filing a lawsuit. Only upon filing a lawsuit will we have an opportunity to review internal documents and to depose the staff and owners of the adult home. We also believe the best settlements are obtained after filing suit. Usually the trial is scheduled 10 months to a year after filing suit.