Nursing Home Wrongful Death: How to Pursue Compensation

If a loved one died from abuse or neglect in a nursing home, the family deserves justice and compensation. Here’s how to make the nursing home pay.

More than 1.6 million people are nursing home patients, with nearly another million residents in assisted-living facilities. ¹

Long-term care patients are a rapidly growing part of the population, and one of the most vulnerable segments of our society.

It’s not always possible for family members to provide round-the-clock care at home.

You agonize over the decision to move your loved one to a nursing home, and want to choose the best facility you can find. You expect the nursing home to provide a safe, supportive, and caring environment for your loved one.

The gut-wrenching fact is that many nursing home residents die a wrongful death caused by abuse and negligence.

Here’s what you need to know about making the nursing home pay for their cruelty and greed.

Causes of Nursing Home Wrongful Death

No one at the nursing home will tell you what really happened. The facility employees and administrators know that most nursing home deaths are never investigated, even when the death was unexpected. ²

Don’t be surprised to hear the nursing staff blame the death, even sudden death, on an underlying medical condition, or simply “old age.”

Unnatural deaths happen when nursing home staff fail to properly care for a patient, or intentionally cause harm. Some wrongful deaths result from a sudden event; others occur after long periods of abuse and neglect.

Frequent causes are:

Slips and Falls: Older adults are at risk for life-threatening falls because of muscle weakness, instability, dizziness, poor vision, and the effects of certain medications. Anyone in the business of caring for the elderly has a duty to assess the needs of each patient and to provide a safe environment.

Slip and fall injuries kill approximately 1,800 nursing home patients every year. However, many nursing home falls can be prevented with appropriate fall prevention programs in place.

Infections: Up to 3 million serious infections occur annually in nursing homes and other long-term care facilities. As many as 380,000 nursing home patients die from infections every year.

Infections common to nursing homes are urinary tract infections, diseases causing diarrhea, and super-infections including MRSA and other staph-type infections.

Infections can develop from careless catheter care, poor person hygiene given to patients, failure to provide appropriate incontinent care, and more.

Malnutrition and Dehydration: As many as two out of every ten nursing home residents suffer from malnutrition and dehydration that could ultimately result in death.

Confusion, difficulty chewing or swallowing, and impaired ability to handle food make it hard for nursing home patients to get enough to eat on their own. Malnutrition can be avoided with nutritional supplements, offering a better variety of foods, and training staff to feed or assist residents with meals.

Dehydration is identified as one of the most common forms of nursing home abuse. Patients may be afraid to drink enough fluids for fear of not being helped to the bathroom. Some nursing home staff intentionally withhold fluids from patients to prevent them from wetting the bed.

Physical Abuse: Assault and physical abuse of nursing home and assisted living patients is rampant. All nursing home patients are at risk of abuse, with some residents particularly vulnerable. Studies reveal that approximately 20 percent of dementia patients in nursing homes suffer physical abuse, and 30 percent suffer from neglect.

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.

Physical or sexual assault on a nursing home resident is a criminal offense.

Forms of assault and abuse of the elderly include striking, kicking, shaking, pinching, and roughly squeezing or pulling on a patient’s hands, arms, shoulders, or other body parts.

Too often, guilty staff members explain away marks, bruises, and broken bones by saying the patient fell.

Unfortunately, abuse often continues until the patient dies from the injuries. Even then, without an outside investigation into the true cause of death, the abuse may go undetected or unreported.

Medical Malpractice: While medical malpractice is often associated with hospital and outpatient treatment centers, it also occurs in nursing homes.

Patients can die when the doctor fails to diagnose or treat illnesses properly. Nurses with direct care responsibilities may fail to notify the physician or patients’ families about critical changes in health or behavior. Patients also die as the result of misuse or overuse of medications.

Federal and State Nursing Home Laws

When a patient dies from negligence and abuse, the at-fault nursing home has violated state and federal laws designed to protect elderly residents.

Nursing Home Reform Act

The Nursing Home Reform Act governs all nursing home facilities receiving Medicare and Medicaid funding. The act requires nursing homes to provide for “the highest practicable physical, mental, and psychological well-being of each resident in accordance with a written plan of care.”

Older Americans Act Reauthorized 2016

The Older Americans Act helps define elder abuse and authorizes funding for elder abuse and neglect programs throughout the country. Funded programs promote awareness of elder abuse, develop community responses to abuse, and train professionals to recognize and respond to elder abuse and neglect.

The Elder Justice Act of 2009

The Elder Justice Act is part of the Patient Protection and Affordable Care Act that went into effect in 2010.

The Act requires nursing home operators and employees to file a written report of suspected elder abuse or other crimes to the federal and state authorities.

State Nursing Home Laws

Nursing homes are licensed and regulated by the state. Most state regulations include strict nursing home guidelines pertaining to:

  • Distribution of medications to patients
  • Food and dietary needs of patients
  • Nursing home staff qualifications and training
  • Dementia care
  • Infection management

Nursing Home Wrongful Death Legal Actions

Long-term care facilities have a duty of care, meaning a legal obligation, to avoid causing harm to patients in their care. Nursing homes have a duty to provide a minimum standard of medical care, cleanliness, and safety to residents.

Negligence happens when nursing home employees or administrators fail in their duty of care. For example, nurses who allowed patients to develop extensive bedsores are negligent.

Liability means legal responsibility. For example, a nursing home would be legally responsible for the wrongful death of the patient who died from neglected, infected bedsores.

Nursing home patients have been the hardest hit by deaths due to the Coronavirus pandemic.

Wrongful Death Claims and Survivor Actions

Every state has wrongful death laws that pertain to legal actions a family can take against the nursing home or assisted living facility that caused the death of a loved one.

Depending on where the death occurred, the family might file a lawsuit for wrongful death or a survivor action. In some states, both types of action are filed in the same lawsuit.

It helps to understand the “parties” in a wrongful death and survivor action lawsuit.

  • The family member who died is called the decedent.
  • The family members filing the lawsuit are the plaintiffs.
  • The nursing home accused of causing death is the defendant.

Wrongful death claims are made by the family, to seek compensation for their financial losses, and pain and suffering.

In the wrongful death section of the lawsuit, the decedent’s family claims the following:

  1. The decedent died because of a specific form of nursing home negligence.
  2. The decedent died leaving loved family members.
  3. The family members suffered pecuniary (monetary) and emotional losses.

Survivor actions are brought by the representative of the deceased person’s estate to seek compensation for damages the deceased person could ask for if they hadn’t died.

In the survivor action part of the lawsuit, the estate representative claims:

  1. The decedent died because of a specific form of nursing home negligence.
  2. As a result of the negligence, the decedent unnecessarily suffered before death.
  3. Had he lived, the decedent would have sued the nursing home for negligence.
  4. Because of his death, the decedent lost the future love and companionship of his family members.

The representative of a deceased person’s estate can be an executor or administrator.

An executor or executrix (feminine version) is a person designated in a person’s will before their death.

An administrator or administratrix (feminine version) is a person designated by the court to represent the estate of someone who died without leaving a will.

Intestate” is the legal term when a person dies without having made a will.

Compensation awarded in a survivor action is paid into the estate. Estate funds are then distributed to the beneficiaries or heirs, in accordance with state law.

Making the Nursing Home Pay

Winning a nursing home wrongful death lawsuit requires a diligent personal injury attorney with extensive experience in neglect and abuse cases.

It’s nearly impossible to prove a nursing home was negligent without the legal resources of an experienced attorney. Your family member already had health limitations that required nursing care. It’s all too easy for the nursing home to blame your loved one’s death on pre-existing medical conditions.

An attorney has legal methods to access the information you’ll need to prove negligence, like internal nursing home files, computer files, emails, records of past violations, personnel records, and much more.

Nursing homes and assisted living facilities pay huge liability insurance premiums. In return, when someone files a wrongful death case, the insurance company marches in with an army of ruthless defense attorneys to fight you every step of the way.

High-dollar Wrongful Death Verdicts

Insurance companies know a wrongful death verdict against the nursing home could run into millions of dollars in compensatory and punitive damages. Even in states with malpractice “caps,” juries award hundreds of thousands of dollars to families of neglected nursing home patients.

Watch out for the statute of limitations period for filing your lawsuit. If the statute runs out before you’ve settled your wrongful death claim or filed a lawsuit, you forfeit the right to pursue any compensation.

The insurance company has no obligation to give you a correct statutory deadline, and they don’t have the legal authority to give you an extension.

It’s hard to face a legal battle when you’ve just lost a loved one to a terrible death. You don’t have to deal with it on your own.

You Can Afford an Attorney

Most attorneys don’t charge for an initial consultation. You can talk to more than one attorney to find the best one to fight for you.

Talk to attorneys with experience in nursing home abuse lawsuits, who can advance the funds to cover the cost of experts and other expenses needed to prove your case.

Most attorneys will handle nursing home wrongful death cases on a contingency fee basis, meaning the attorney’s fees aren’t paid unless your case is settled or wins a court verdict.

Don’t wait to find out what a good attorney can do for you and your family.

Nursing Home Wrongful Death Questions & Answers

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>