Filing a nursing home abuse case can be tricky at times. One of the more difficult obstacle to overcome in these types of cases are affirmative defenses. Affirmative defenses are constructed in an effort to nullify the plaintiff’s reasoning for a civil suit. If you are currently facing a defendant using affirmative defenses in Florida nursing home abuse cases, it is important to contact a dedicated attorney who can help you prepare for these defenses.

What is an Affirmative Defense in Florida

When a lawsuit is filed, the lawyer files a complaint on behalf of the plaintiff or injured party. The complaint lists what the defendant did wrong, why they were negligent, requests a jury trial, and claims the damages. After the complaint is filed, it is served on the defendant who must file a motion to dismiss or an answer. An answer is a response to the plaintiff’s claims about what happened and what the case is about. It may admit or deny each part of the defendant’s statements in the complaint.

At the end of the answer, the defendant also files an affirmative defense. This is a defense where the defendant introduces evidence to negate the claims made in the plaintiff’s complaint if the evidence is found to be credible and it is proven that the defendant did commit the alleged acts. It could be something like the plaintiff did not file the claim within the statute of limitations, or the plaintiff was negligent. The defendant may claim they are not responsible, some third party caused the injuries.

Common Affirmative Defenses

The most common affirmative defense is called the Fabre affirmative defense and comes from the decision made in the Fabre v. Martin case. In a Fabre affirmative defense, the defendant asserts that somebody was negligent but it is not them.

It is standard practice for every defendant in a nursing home abuse claim to file an affirmative defense. If they do not file an affirmative defense, they could get into trouble with the bar. It is a standard thing that is filed by the defense that the plaintiff should be aware of and be ready to respond. For help with constructing a civil suit that can counteract affirmative defenses in Florida nursing home abuse cases, be sure to get in touch with a skilled attorney today.

Responding to an Affirmative Defense in a Nursing Home Abuse Case

The first thing a nursing home abuse lawyer does in an assertion of an affirmative defense by the defendant is to file a reply to affirmative defenses. It is a document filed in response that states why the affirmative defenses do not apply in this case and that the defendant is wrong.

A lawyer must make sure they draft the right type of discovery to get the documents and information they need in order to prove why the affirmative defenses are wrong. They must be prepared to ask the right set of questions during the deposition to establish on the record that the affirmative defenses do not apply to this case.

Why Should a Person Hire a Florida Nursing Home Abuse Lawyer

The affirmative defenses in Florida nursing home abuse cases are very different from affirmative defenses used in a car accident or a slip and fall case. Attorneys who are experienced in these cases know how to respond to them. They know how to properly defend against them throughout the course of the case. An attorney makes sure to get the proof they need to show the affirmative defense is wrong when they do their discovery and gather evidence.

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Domnick Cunningham & Whalen

Domnick Cunningham & Whalen

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2401 PGA BOULEVARD SUITE 140
PALM BEACH GARDENS
FL 33410
Phone: (561) 625-6260