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Attorney Guide: Investigating Adult Survivors Act Claims Made by Former Patients
Contents
Introduction
The Adult Survivors Act (ASA) is a new law in New York that created a one-year lookback window for survivors of sexual abuse to bring civil claims against their abusers and negligent institutions, even if the statute of limitations had already expired. This has opened the door for many former patients to file lawsuits against hospitals, doctors, and other providers for sexual abuse that occurred decades ago when they were children.
For attorneys taking on these cases, investigating the claims and building a strong case on behalf of adult survivors involves some unique challenges. Records may be sparse or nonexistent, witnesses’ memories may have faded, and standards of care were different in past eras. However, with sensitivity and diligence, attorneys can overcome these hurdles.
Investigating the Client’s Allegations
The first step is to compassionately interview the client to understand the details of the alleged abuse. Where did it occur? Who were the perpetrators? What was the nature of the abusive acts? How frequently did they occur and over what period of time? What was the context that enabled the abuse? Documenting this early history is crucial.
It’s also important to evaluate any related impacts the abuse had on the client’s mental health and life trajectory. Often there are deep emotional wounds and a sense of betrayal that lasts long after the abuse ended. Understanding these effects can reveal the true severity of the harm.
Gathering Available Records
Any contemporaneous documentation of the abuse from the relevant time period will be very valuable. This might include medical records, incident reports, personnel files on the abusers, policies and procedures of the institution, etc. If the client was in foster care, those records may provide context. Schools attended at the time may have useful information. Compiling any confirming evidence is helpful.
Where records have been destroyed or are nonexistent, that alone can support allegations of negligence and coverups by institutions. The lack of documentation can speak volumes.
Identifying Witnesses
Locating any witnesses who may be able to corroborate elements of the abuse allegations is key. These may be fellow patients, parents, siblings, staff who worked at the facility, etc. Their perspectives could substantiate critical facts, provide context on the environment where abuse occurred, or even confirm direct knowledge of the specific abuse.
Witness memories will be imperfect given the passage of time. Yet even partial recollections can contribute meaningful pieces to prove up the client’s claims.
Assessing Standards of Care
To show negligence, attorneys need to demonstrate the standard of care at the time was breached. This may require interviewing experts who can speak to norms, customs, policies, and training that defined acceptable conduct by medical providers in that era. This establishes the yardstick against which the institution’s conduct should be measured.
There may also be a basis for arguing that no matter the time period, certain abusive behaviors toward vulnerable children inherently breached standards of care. Certain misconduct is so egregious it was always improper.
Overcoming Statute of Limitations Hurdles
Depending on the case details, attorneys may need to show why the statute of limitations should be set aside. In some cases, claiming the institution intimidated the client from filing suit or deliberately concealed information might help overcome this bar. Arguments around repressed memory recovery may also be relevant.
Conclusion
Pursuing ASA claims requires sensitivity and creativity by attorneys, given the long passage of time. Yet building robust cases is possible with diligence. Compassionate client interviews, exhaustive records searches, locating corroborating witnesses, establishing standards of care, and navigating statute of limitations hurdles are key steps. Justice for decades-old abuse is now possible with the Adult Survivors Act.