According to the U.S. National Library of Medicine, almost 25 percent of deaths each year in the United States occur in nursing homes and assisted living facilities. Unfortunately, many of these deaths are unnecessary and occur due to patient neglect and abuse. To hold nursing homes and assisted living facilities accountable for their actions, each state has its own form of nursing home wrongful death statute.
These statutes give family members the right to demand compensation for losses they suffer because of the untimely death of their loved one. These can include ambulance and funeral costs, family members' emotional losses, including loss of companionship and guidance, and the family's share of the decedent's lost future income, if any.
The decedent's estate can ask for additional losses (damages) under state survivor statutes, which can include the decedent's own loss of the companionship and love he would have shared with his family if he had lived.
According to the National Institutes of Health (NIH), more than 1,800 people die each year after falling in nursing homes. Most state nursing home laws require facility owners to conduct "fall-risk" assessments for all patients, especially for those who they know are at risk for falling.
Because most nursing homes have tile or linoleum flooring, any time a patient falls he or she is at risk for serious injury or death. Wet floors, debris, and protrusions pose serious danger to elderly patients. The staff must always stay vigilant for dangerous conditions. They also must make walkers available and assist patients to move around. Because of the frailty of many nursing home patients, any fall is potentially lethal.
Nursing home and assisted living facility (ALF) staff also must remain vigilant for signs of infections. Close proximity to other patients, staff members, vendors, and other visitors makes patients with compromised immune systems very susceptible to infection. Unsanitary conditions, including used catheters, dirty IVs, and unclean medical instruments can compound the problem.
Common infections known to cause the death of nursing home and assisted living facility patients include Human Immune Deficiency (HIV), Vancomycin-Resistant Staphylococcus Aureus (VRSA), influenza, sepsis, and Methicillin-resistant Staphylococcus Aureus (MRSA). Failure to promptly identify, diagnose, and treat infections in patients can result in death.
Malnutrition and dehydration
According to the Commonwealth Fund, more than one-third of the 1.6 million nursing home and ALF patients suffer from malnutrition and dehydration. Taken with their already fragile states, these patients can quickly decompensate until they become so weak they can't fight off infection and pneumonia.
There's no excuse for a patient to become malnourished or dehydrated. Apathetic staff is often at the root of the problem. Whether because of lack of training or lack of empathy, staff members may fail to assist needy patients with eating, fail to heed requests for fluids, and in some cases completely ignore feeding patients.
Assault and physical abuse
Assault and physical abuse of nursing home and assisted living patients is rampant. Authorities have arrested, convicted, and imprisoned staff for assaulting patients. Low pay and lack of training is no excuse. While physical abuse may not be apparent as the direct cause of death, consistent abuse can cause gradual deterioration of health and ultimately be the underlying cause of death.
Assault and abuse of the elderly is a felony in every state. When police determine abuse is the underlying cause of a patient's death, they can charge the staff member who committed the assault with murder.
Common forms of assault and abuse of the elderly include striking, kicking, violently shaking, pinching, and even burning. Patients' clothing can cover up bruising, abrasions (scrapes), lacerations, and even broken bones, especially when the patient is bedridden and can't effectively communicate his pain. Too often, guilty staff members explain away these injuries by saying the patient fell.
Unfortunately, abuse often goes undetected until it's too late and the patient dies because of his injuries. Even then, without an autopsy, the doctor may rule the patient's death due to heart failure, pneumonia, or other common cause of death.
While medical malpractice is often associated with hospital and outpatient treatment centers, it also frequently occurs in nursing homes. Unfortunately, all too often doctors employed by nursing homes and assisted living facilities are semi-retired, part-time, or marginal "fringe" doctors. They're often poorly paid and employed by nursing homes to make superficial examinations of patients.
When doctors fail to diagnose a patient's illness properly or fail to prescribe proper medications, they can severely compromise a patient's health. Failing to order required tests or treat existing maladies can lead to rapid deterioration of the patient's condition, resulting in death.
There are two types of legal remedies available to family members who want to pursue a nursing home wrongful death case. They can pursue these legal remedies separately or together in the same lawsuit. The first is a claim for wrongful death, and the second is for survivors' benefits.
Wrongful death action
In the wrongful death section of the lawsuit, the decedent's family claims the following:
In the survivors' action part of the lawsuit, the administrator or executor* of the decedent's estate claims the following:
* "Administrator" refers to a person appointed by the court to deal with an estate when the decedent died without a will. "Executor" refers to the person the decedent named in his will to handle the affairs of his estate when he dies.
In a survivors' action, because the decedent can't actually receive compensation, the administrator or executor asks the court to order the negligent nursing home or assisted living facility to pay the decedent's estate.
In this instance, the beneficiaries of the decedent's estate named in his will would receive the compensation. If the decedent died intestate (without a will), the state's probate intestacy laws would come into play. In that case, the legal beneficiaries of the estate are those family members named under the state's intestacy laws.
To pursue a nursing home wrongful death lawsuit requires a qualified personal injury attorney with extensive experience in these kinds of cases. It's foolish to attempt such a lawsuit on your own.
Nursing homes and assisted living facilities pay millions of dollars each year in insurance premiums. In return, when someone files a wrongful death case, the insurance companies make sure they quickly provide an army of experienced defense attorneys.
One of your main concerns is the statute of limitations period for filing your lawsuit. Each state sets its own time periods to file legal actions. If you miss that period even by a day, you lose your rights to compensation. Take care, because in many states the period for filing a personal injury claim is different than filing a wrongful death lawsuit.
Most plaintiffs' wrongful death attorneys won't charge any fee for an initial office visit. They receive their fees if they win your case in trial or reach a settlement after filing a lawsuit. It's a good idea to talk to several attorneys before deciding on one you believe best serves your interests. You want to feel comfortable with the attorney you choose.
Once you settle on an attorney and sign a retainer agreement, your attorney will promptly file a nursing home wrongful death lawsuit. By filing a lawsuit, your attorney can take advantage of the vast array of pretrial discovery techniques provided under the law.
These include taking nurses', staff members', and administrators' depositions (recorded, sworn statements), subpoenaing facility and patient medical records, and conducting additional investigation meant to uncover the true reason for the patient's death.
These attorneys study recent court decisions, attend continuing legal education courses in nursing home and assisted living developments, maintain professional relationships with physicians and nursing home administrators, and more. These attorneys have access to expert consultants, and where necessary, expert witnesses at trial.
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