Wrongful deaths may be the unfortunate result of any negligent occurrence When an elderly resident of a nursing home suffers injuries as a result of elder abuse that cause his or her wrongful death, the tragedy of that death may overshadow the liability imposed on the caregivers and the nursing home that created the fatal conditions. Families of the injured party need to pay close attention to statutes of limitations and other deadlines when they are considering whether to file a wrongful death lawsuit
The first question to answer in a wrongful death action is which party has a right to file the lawsuit. All fifty (50) states allow some form of a wrongful death cause of action to be filed by an injured party’s immediate family members, and by the deceased party’s surviving spouse. Some states allow an adult child of a deceased adult to file a lawsuit and all states generally allow parents of a minor child to initiate a wrongful death action.
Some states allow partners in civil unions to file a wrongful death action on behalf of a deceased partner, and distant relatives of single adults can also file those actions. The more confusing questions arise when more than one wrongful death action is filed by different representatives of the decedent. For example, if an elderly relative suffers a wrongful death as a result of nursing home elder abuse, each of that elderly person’s children might file a lawsuit. Only one wrongful death action is allowed for each decedent, and courts will consolidate multiple cases under the umbrella of the party who is best able to represent the decedent.
Wrongful death cases must be filed within time limits established by a state’s statute of limitations, which begins to run as of the date of the decedent’s death. State statutes allow at least one year to file the lawsuit, although actions against government entities or employees may need to be filed within as short a period as ninety days after the decedent’s death. Family members of an elderly relative who suffered a wrongful death should consult with elder law counsel as soon as is possible after that person’s death in order to avoid the statute of limitations problems with the case.
Damages that are awarded to surviving family members after an elderly relative suffers a wrongful death that was catalyzed by elder abuse may be entitled to monetary damages. Those damages will be a function of the victim’s future earnings potential and other factors. Elderly individuals, however, are generally not deemed to have significant potential earnings, and as a result, damages in elder abuse wrongful cases are often less than for younger individuals. If an elderly person’s children are grown and living independently, then damages will be even less because courts perceive that independent children are able to care for themselves without additional financial support. Damages awards in elder abuse cases may be increased by consideration of the victim’s pain and suffering.
No wrongful death action will be successful if the caregiver’s actions did not proximately and directly cause the elderly person’s death. Since elderly residents of nursing homes are frequently in bad health, distinguishing between a natural death and a death that was caused by elder abuse will be a significant challenge in any elder abuse wrongful death case. An elder law attorney will present a detailed description of all facts leading up to the decedent’s death, including evidence of falls, physical or psychological abuse, medication errors, bedsores, excessive restraints, and malnutrition and dehydration. In many instances, expert opinions and thorough reviews of medical records will be required to verify the underlying cause of death.
An elder law negligence attorney will best be able to sort through all of the issues you will face when you are considering filing a wrongful death action against a caregiver or nursing home. Wrongful death cases can be long and emotionally draining as family members are required to go over sometimes-unpleasant details of their loved one’s last days before passing away. If a negligent or abusive party did cause an elderly person’s death, family members will nonetheless be entitled to compensation for that negligence and their loss.
References:
http://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf
http://www.justice.gov/archive/victimcompensation/law_nj.pdf
http://www.cdc.gov/nchs/fastats/accidental-injury.htm
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/