By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.
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Step one: getting the resident’s records
Most nursing home cases are built on the chart, so the first delay is how fast the records arrive. Federal rules for nursing homes that take Medicare or Medicaid give residents access to their personal and medical records within 24 hours of an oral or written request, not counting weekends and holidays. Copies must be provided on two working days’ advance notice, and the facility may charge only a reasonable, cost-based fee (42 C.F.R. 483.10(g)(2)).
California adds its own rule. A patient or the patient’s personal representative can inspect records within five working days of a request and must be sent copies within 15 days (Health and Safety Code 123110). When a resident has died, the family’s lawyer works out who has legal authority to ask.
Step two: the investigation
Before anything is filed, the lawyer compares the chart with what happened. Nurses or physicians review the care plans, wound notes, fall reports and medication records. The state inspection file can show whether regulators already cited the facility for the same problem. In California you can look that up yourself with Cal Health Find. Families who still have photos, texts or names of staff should save them, because they can fill gaps in the chart.
Step three: rules before and just after filing
Each state treats a claim against a nursing home a little differently, and these rules add fixed waiting periods or deadlines.
| State | Rule | What it adds |
|---|---|---|
| California | 90-day notice for claims based on a health care provider’s professional negligence (CCP 364) | Suit waits 90 days after notice. If notice is served within 90 days of the deadline, the deadline moves out 90 days from service. |
| Texas | Written notice by certified mail at least 60 days before suit, with a signed medical authorization (CPRC 74.051, 74.052) | The notice tolls the filing deadline for 75 days. |
| Texas | Expert report served within 120 days after each defendant files its original answer (CPRC 74.351) | If it is missing, the court must, on the defendant’s motion, dismiss the claim with prejudice and award the defendant’s attorney fees. Most discovery is on hold until the report is served. |
| Washington | No pre-suit notice in RCW 7.70.100 | Health care claims go to mandatory mediation before trial. |
Texas law lists a nursing home as a “health care institution,” so Chapter 74 applies to many claims against one (CPRC 74.001). Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou.
California has a second track. An elder abuse claim for reckless neglect under Welfare and Institutions Code 15657 allows added remedies such as attorney fees. The California Supreme Court held that a reckless neglect claim is not “based on” professional negligence under the Elder Abuse Act’s own exclusion (Delaney v. Baker, 1999), and later said elder abuse neglect “covers an area of misconduct distinct from ‘professional negligence'” (Covenant Care v. Superior Court, 2004). Delaney said it was not deciding what the same words mean in other statutes, and section 364 by its terms covers an action “based upon” a provider’s professional negligence. Many complaints plead both claims, so a lawyer may serve the notice to protect the negligence claim.
In Washington, a vulnerable adult who was abused or neglected while living in a facility has a separate claim for damages, with costs and a reasonable attorney fee to a plaintiff who wins (RCW 74.34.200).
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Arbitration agreements
Many admission packets include an agreement to arbitrate. If it is valid, the case goes to a private arbitrator instead of a jury, and the arbitrator’s calendar replaces the court’s. Federal rules for Medicare and Medicaid facilities say a nursing home cannot make signing a condition of admission or continued care. The agreement must give the right to cancel within 30 calendar days of signing and must provide for a neutral arbitrator and a convenient place (42 C.F.R. 483.70(m)).
In California, a contract for medical services that sends professional negligence disputes to arbitration must use set wording as its first article, carry a notice in bold red type above the signature line, and allow cancellation in writing within 30 days (CCP 1295). Whether these rules fit a given admission packet depends on its wording, so bring every page you signed.
Trial preference for older residents in California
A party over 70 can ask the court for trial preference if the party has a substantial interest in the case and their health makes preference necessary to protect that interest. Once preference is granted, the court must set trial within 120 days, and any continuance is limited to 15 days (CCP 36(a), (f)).
Filing deadlines
The deadline sets the outer limit on how long a family can wait.
| State | Deadline | Law |
|---|---|---|
| California | Personal injury: generally two years. Professional negligence by a health care provider: three years from injury or one year from discovery, whichever comes first. | CCP 335.1, CCP 340.5 |
| Texas | Health care liability claims: two years from the breach or from completion of the treatment, with an outer limit of 10 years. | CPRC 74.251 |
| Washington | Health care claims: three years from the act or one year from discovery, whichever is later. The statute’s eight-year outer limit was struck down in Bennett v. United States, 2023. Other injury claims: three years. | RCW 4.16.350, RCW 4.16.080 |
What this means for your case
Request the chart early, in writing, and keep a copy of the request. Find the admission packet and look for an arbitration page and its signing date. If the resident is in California, is over 70 and is in poor health, ask about trial preference. If Medicare paid for hospital care after the injury, that payment will need to be repaid from any recovery; our page on whether Medicare pays for nursing home care explains how. Our nursing home abuse section and our Los Angeles nursing home abuse lawyer page describe how the firm reviews these cases.
Common questions
Can I get my mother's nursing home records before hiring a lawyer?
Yes. A resident, or a representative with legal authority, can ask the facility directly. Federal rules give access within 24 hours, excluding weekends and holidays, and copies on two working days’ notice.
Does Texas require an expert report before I can sue?
The report comes after filing. It must be served within 120 days after each defendant’s original answer, and the 60-day written notice comes before the suit.
Does an arbitration agreement end the case?
No. A valid agreement moves the claim to an arbitrator. Under federal rules the resident can cancel within 30 calendar days of signing, and the facility cannot require it for admission.
Is there a notice period before suing a nursing home in Washington?
RCW 7.70.100 has no pre-suit notice. It does require mediation of health care claims before trial.
Can a dying resident's case move faster in California?
A party over 70 whose health puts the case at risk can ask for trial preference. If it is granted, trial must be set within 120 days. Beverly Law offers a free case review in English or Spanish at (310) 552-6959. You owe no fees or costs unless we win. Find more answers in our injury law FAQs.
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Related pages
Sources
- 42 C.F.R. 483.10 (resident rights, access to records) (law.cornell.edu)
- Cal. Health and Safety Code 123110 (leginfo.legislature.ca.gov)
- Cal. Code Civ. Proc. 364 (leginfo.legislature.ca.gov)
- Cal. Welfare and Institutions Code 15657 (leginfo.legislature.ca.gov)
- Delaney v. Baker (1999) 20 Cal.4th 23 (scocal.stanford.edu)
- Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 (scocal.stanford.edu)
- Tex. Civ. Prac. & Rem. Code ch. 74 (74.001, 74.051, 74.052, 74.251, 74.351) (statutes.capitol.texas.gov)
- RCW 7.70.100 (app.leg.wa.gov)
- RCW 74.34.200 (app.leg.wa.gov)
- 42 C.F.R. 483.70 (binding arbitration agreements, paragraph (m)) (ecfr.gov)
- Cal. Code Civ. Proc. 1295 (leginfo.legislature.ca.gov)
- Cal. Code Civ. Proc. 36 (leginfo.legislature.ca.gov)
- Cal. Code Civ. Proc. 335.1 (leginfo.legislature.ca.gov)
- Cal. Code Civ. Proc. 340.5 (leginfo.legislature.ca.gov)
- RCW 4.16.350 (app.leg.wa.gov)
- RCW 4.16.080 (app.leg.wa.gov)
- Bennett v. United States, No. 101300-1 (Wash. Dec. 7, 2023) (courts.wa.gov)
Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.