Wrongful Death

Case Types

Experiencing the loss of a loved one is a profoundly agonizing ordeal. It is a journey that no one should navigate alone. Even in cases where death arises naturally due to old age, the pain lingers. Typically, individuals have the opportunity to bid farewell, reconcile with their loved ones, and address any lingering conflicts or resentments. However, when a loved one’s demise is sudden, traumatic, premature, and avoidable, the wounds run even deeper.

What is a Nursing Home Wrongful Death Claim?

The term “wrongful death” is not just a legal phrase, it signifies that some company or person played a role in causing death through an unnecessarily dangerous action. A wrongful death claim is a legal action initiated on behalf of surviving family members who have suffered because their loved one was wrongfully taken from them.

Although no sum of money can ever substitute a lost loved one, attaining financial stability in the aftermath and witnessing wrongdoers being held accountable for their actions can provide a profound sense of security and closure for those left behind.

What is the Purpose of a Nursing Home Wrongful Death Claim?

Nursing home wrongful death lawsuits have two purposes.

First, they provide monetary compensation for family members who have had their loved ones taken from them under traumatic circumstances.

Second, they ensure that nursing home’s are accountable for their actions so that this does not happen to someone else. Unfortunately, nursing homes are corporations aimed at increasing profits. Along the way, compromises and decisions are made that put residents’ lives in jeopardy. Lawsuits reset the nursing home’s priorities resulting in changes in policies, practices, and staffing.

Successful lawsuits save nursing home residents’ lives.

What Are the Different Types of Nursing Home Wrongful Death Claims?

There are an endless number of scenarios where a nursing home or assisted living facility’s negligence causes a resident’s death. However, there are several scenarios that appear most often. These are:

Falls and drops
Wandering off (elopement)
Choking
Bedsores (pressure injuries)
Medication errors
Dehydration
Malnutrition
Infections
Physical or sexual assault
Respiratory errors (vent and trach care)
Understaffing (although not a claim itself, it is the cause of many injuries)

What Do I Have Prove In A Wrongful Death Case?

To win a wrongful death case against a nursing home, you must prove 3 things.

The nursing home acted unreasonably
The nursing home’s bad care caused someone’s death.
The surviving family members have suffered loss because of the death.

The Nursing Home’s Conduct was Unreasonable.

Every nursing home must behave in a reasonable manner. Nursing homes must do their jobs and never put their resident’s health or safety in jeopardy. They must act as a good nursing home would under the same circumstances.

For example, nursing homes and assisted living facilities:

Should adequately assess residents to create a plan to safely care for the resident. These assessments should be revisited and updated periodically.
Should sufficiently staff facilities to make sure they have enough resources to adequately care for the residents.
Should take measures to prevent choking and suffocation.
Should have adequate and reasonable interventions in place to prevent falling injuries and death.
Should make sure the resident is receiving proper nutrition and hydration.
Should prevent the development of bed and pressure sores, unless they are considered unavoidable because of certain health conditions.
Should assess patients to find out if there is a risk that they will wander off (called “elopement”) and get injured and take steps to prevent this from happening.
Should update family members and powers of attorney with important updates about changes in condition.
Should make sure that residents are getting the right medications in the right amount at the right time.
Should make sure that residents are not getting preventable infections.
Should do background checks on staff to make sure those people are fit to work in the facility.

If a nursing home fails to act reasonably, it is considered negligence. It may also be considered abuse and neglect.

The Nursing Home’s Unreasonable Care Caused The Resident’s Death.

It is not enough to show that the nursing home’s conduct was unreasonable. You must also prove that it caused the person’s death. This is similar to an example of poor driving. If a person is not paying attention when driving, perhaps they are texting or looking for an item, and they cross the centerline, their conduct was unreasonable. However, if they do not hit a car or person, there is no lawsuit. That is because in a lawsuit you must show that the bad conduct was a cause of the injuries. In a wrongful death case, you must be able to prove that the bad conduct was a cause of the death.

Loss Caused by the Victim’s Death.

The jury must determine if and how the victim’s death caused the family to suffer. Our civil jury system only allows monetary compensation as a remedy for wrongful death. The jury must assign a monetary value to compensate the family for their loved one’s death.

This is not something jurors are accustomed to doing in their daily lives. It is the lawyer’s responsibility to convey the deep emotional loss, grief, and mental anguish that is caused when our elderly loved ones are harmed by healthcare professionals who we trust.

How Much Proof Do I Need to Show The Death was “Wrongful”?

The amount of evidence required to prove a claim is referred to as the “burden of proof.” Different kinds of cases have a different burden of proof. In a criminal case, the burden of proof is “beyond a reasonable doubt.” This requires close to certainty.

In a civil case, like a wrongful death case, the burden of proof is a “preponderance of the evidence.” A preponderance is a legal term meaning “more likely than not” or 50.1 percent. Another way to think about it is if you were to take two scales side-by-side and stack evidence for and against the case on each scale, if one scale has even slightly more evidence in it, then you have proven your claim.

In a wrongful death case, you are required to prove that more likely than not, or by 50.1 percent, that the nursing was unreasonable and caused the victim’s death.

How Will You Investigate My Wrongful Death Case?

Start an Investigation

The only way to begin the process is to contact us and start an investigation. The sooner this process begins, the sooner answers can be reached. It is important to act quickly because all states have what are called statutes of limitation. These are time periods by which a case must be filed. If the case is not filed within those time periods, the case can never be brought.

Face-to-Face Meetings

One of the most important parts of investigating a case is for the legal team to get to know the people involved. These types of relationships can only be formed by spending time with another face to face and learning the real story. It is through these types of interactions that the truth is found.
If you’ve ever looked at your own medical records, you know they are not always correct. They are often put together by rushed hospital staff who miss important information or they may simply contain inaccuracies and false information. Worse yet, nursing home records are often missing critical pieces of information and include intentionally false statements intended to minimize their poor care or even blame the patient.

Nursing home records often do not include the whole story. If a driver was involved in a car accident, and the police officer asked the driver to write the police report, it would likely be quite favorable to the driver. Few people have the integrity to say they were in the wrong and take responsibility for it.

Nursing homes are no different. Regardless of how bad the care is, nursing home records rarely show the extent of the bad care.

Our motto is to always believe our clients until there’s a reason not to. The motto has not let us down.

Interviewing Witnesses

Witnesses can come in many shapes and forms. Evidence is like bricks in a whole. No single witness needs to build the entire wall. But, if you have numerous witnesses who can each add a brick or two, the evidence stacks up and you prove your case.

Witnesses almost always include friends and family members of the victim.

Witnesses can also include loved ones of other residents at the same facility. They may not have directly seen what happened to the victim, but they may be able to corroborate what the victim’s family claims occurred. They may be able to provide their own evidence of understaffing, or medication errors, or delays in responding to call lights. This evidence can be used to show that what the family is claiming is likely true.

Former employees of the nursing home often make outstanding witnesses. Caregivers usually go into this profession for the right reason. They want to help people. However, because of decisions that are made at the corporate level, they are deprived of the ability to do that because they lack the staff and resources. They do not always come forward to testify, but when they do, their testimony can be some of the most powerful in proving the case.

Records Review

All nursing home residents have numerous medical conditions. That is why they are in a nursing home. The records from before, during, and after the nursing home are critical to proving the case. These records play a crucial role in identifying the individuals involved, the care needs of the resident, the neglect that occurred, and proving that the injuries were caused by the neglect.

Expert Consultations

Before bringing a lawsuit, we want to be as certain as we can about the strengths of the case. We have the medical records reviewed by at least one but sometimes as many as 6 experts from numerous nursing and medical specialties.

We collaborate with a range of experts, including nurses, nursing home administrators, nursing home medical directors, dieticians, occupational and physical therapists, speech-language pathologists, wound care specialists, surgeons, infectious disease specialists, geriatricians, and forensic pathologists.

Litigation

Litigation occurs when the lawsuit has been filed in court. During this stage, we obtain powers and rights that we did not have before the lawsuit was filed. We gain the power to subpoena documents and witnesses. We gain the power to obtain internal company records on staffing, budgeting, policies, procedures, emails, etc. We also gain the power to force witnesses to sit for depositions. Depositions are a legal interrogation under oath on video where a court reporter types down everything the person says. We are able to present the witness with any documents we have obtained and cross examine them to get to the truth. This is often a turning point in a case.

Trial

Trial is the final phase of litigation. It is the last stage in the lawsuit. We are trial lawyers. So, from day one, we are planning for a trial.

At trial, members of the community who know nothing about each come together to decide the truth of what happened. They evaluate the witnesses to determine who is credible and who is not.

The jury’s role is to determine whether the nursing home should be held accountable for causing injuries and death.

What Can A Jury Award In A Wrongful Death Case?

Loss of Relationship

The most profound impact of losing a loved one is the void they leave in our daily lives. Through numerous trials and shared hours with family members, we’ve learned that each family member plays a unique and irreplaceable role within the family dynamic. One person might serve as the go-to individual for advice on day-to-day, relationship, or work matters. Another family member might be the meticulous planner, organizing and preparing the family for upcoming reunions, birthdays, vacations, and events. Yet, another family member might be the one who injects humor, putting everyone at ease regardless of the occasion.

When a member of our family is taken, a void is created, and their role goes unfilled. The family experiences turmoil as other members attempt to step into the now vacant role.

The law allows family members to recover for the loss of that unique relationship.

Mental Anguish and Grief

When our loved one is taken from us and dies an unnecessary and often painful death, the grieving process is much different than when a person dies naturally. We did not have time to make our amends or heal resentments. We did not have the chance to say goodbye. We did not have the opportunity to write our own ending to our relationships. We are often left with anger, guilt, and sadness.

The law recognizes that the sudden, painful, unnecessary, and tragic nature of a wrongful death affects us far more than a natural death. The law allows the jury to compensate family members for their own unique loss.

Who Gets the Money in a Wrongful Death Case?

In a settlement or jury verdict, the surviving family members are entitled to the recovery based on their amount of grief. In most situations, these are typically the surviving spouse and children, and sometimes siblings and grandchildren.

Who Decides Which Family Member Gets What After a Wrongful Death Case?

After a wrongful death case is settled or the jury awards a verdict, the probate court usually determines who in the family gets what amount of money. The probate court is a separate court system from the court that oversaw the wrongful death trial.

In some ways this is similar to the way a person’s estate is divided after a person dies. In that situation, the person may have had a will that determined what person in the family receives what piece of property.

After a wrongful death lawsuit, it is a similar process where the probate court decides how the money should be distributed based on the different relationships in the family. Usually, the family members are in agreement on how the money should be divided, and it is a simple process.

Can I Still Have a Wrongful Death Case if the Family Does Not Get Along?

Yes. All families are unique. Some families fit the picturebook Hallmark standard, but the vast majority do not. It is not unusual to have one or more family members who dislike or distrust each other. It is also not unusual for there to be tension in the family about who was more or less involved in their loved one’s care.

Why Grief Counseling is Important

We strongly recommend that each of our clients seek professional help from one or more grief counselors.

Grief counselors are licensed mental health professionals, often clinical psychologists, licensed counselors, therapists, or social workers specializing in grief and trauma. Many family members may encounter depression and anxiety after losing a loved one, and some may face more severe forms of traumatic psychological injury, such as post-traumatic stress disorder, complex post-traumatic stress disorder, and complex grief.

The intensity of grief can be influenced by factors such as the relationship to the loved one, the traumatic circumstances of the death, whether a loved one witnessed the death or its immediate aftermath, and whether the family has experienced additional recent losses, which can compound the grieving process

Grief counselors, being experts in grief and loss, are equipped to develop a care plan that helps individuals cultivate coping skills to navigate the enduring effects of these profound emotional scars.

Representative Cases

Falls

Lou was a 70-year-old man who entered a nursing home outside of Cleveland, Ohio to recover from brain surgery after an aneurysm. While at the nursing facility for rehab, he fell 5 times. He struck his head in the fifth fall. He developed a subdural hematoma, which is bleeding between the skull and the brain. The nursing home delayed sending Lou to the hospital for several hours. During that time, the blood continued to pool in his skull putting increased pressure on the brain. By the time Lou was taken to the hospital, it was too late. He suffered permanent brain injury and died. A Cuyahoga County, Ohio jury returned a verdict of $5,000,000.

Elopement (Wandering Off)

Robert was an elderly resident of an assisted living facility in Columbus, Ohio. Robert moved into the facility because he was suffering from dementia, and his family was afraid he was not safe to live at home. At about 1am, Robert walked out of the building into the freezing cold. The doors were supposed to be locked to prevent this from happening. Robert was found the next morning frozen in the parking lot.

Choking

Stephen was a 69-year-old man with a history of schizophrenia and a traumatic brain injury. He was known to “scarf” or “wolf” his food. He would attempt to take large bites of food and quickly swallow it without chewing. He was seen by a speech therapist who recommended that staff closely monitor him when eating to make sure that he took small bites, chewed his food thoroughly, and then swallowed his food. Nursing staff did not follow the speech therapist’s recommendations. Stephen was given a tray of food to eat alone in his room. This was a common practice. When staff arrived in his room to retrieve his meal tray, he was unresponsive and covered in vomit after choking. Staff then waited 41 minutes to call 911. Stephen never recovered and died. The jury awarded $26,000,000 in Trumbull County, Ohio.

Medication Error

Phil was an 81-year-old man with a history of Parkinson’s disease. He entered a nursing facility outside of Cleveland, Ohio for a temporary stay while his wife sold his home and they resumed living together. Phil’s wife received a call that he was acting strangely and the doctor had ordered medication for anxiety. When Phil’s wife came to visit him days later, he could no longer walk, speak, eat, or even respond. He was taken to the hospital where it was determined that a nurse had given him risperidone, which is an antipsychotic medication. No physician had ever prescribed this medication. In addition to the fact that no doctor ever prescribed this medication it should never be given to Parkinson’s patients because it accelerates Parkinson’s disorder. Phil lost the ability to swallow and eventually died from the effects of aspiration pneumonia. The lawsuit settled for $2,300,000.

Sexual Assault

Lorraine was a resident of an assisted living facility in Southwest, Ohio near the Kentucky border. Lorraine had dementia and was unable to protect herself. Another resident had a history of exposing himself to other residents, making sexual advances, and being found in their rooms. One night, staff walked into Lorraine’s room and found the male on top of her in a chair sexually assaulting her. She was taken to the hospital where it was confirmed that she was raped. Over the next month, she became withdrawn, stopped eating, and died. This is a common scenario prior to death following an assault of an elderly person.

Falls

Leona was a 76-year-old woman who lived in a nursing home outside of Cleveland, Ohio. She had suffered a stroke years earlier and needed around the clock care. She required two people to assist her when moving in bed. Because of short staffing, one nursing home resident attempted to move her in bed. Instead of rolling her in bed, the staff member rolled her off the other side of the bed. Leona fractured her hip in the fall. Over the next several weeks she declined until she died. The Cuyahoga County Medical Examiner determined that she died as a result of the injuries in the fall. A jury in Cuyahoga County, Ohio returned a verdict of $4,400,000.

Infection

Larry was a 50-year-old resident of a nursing home in Lima, Ohio. With the permission of staff, Larry walked out of the building to have a cigarette. The protocol was to have a nurse standby because the doors automatically lock from the outside between 11pm and 6am. The caregiver went back inside the building. Larry was unable to reenter the building because the doors were locked. Larry was found frozen in the parking lot when the next nursing shift arrived at 6am.

Infection

Jack was an 84-year-old resident of a nursing home in Knox County, Ohio. He had previously lived at home before falling and injuring his leg. He was admitted to a nursing home for rehabilitation to allow his leg to heal. While at the nursing home, his family became concerned about his care. He was losing weight, becoming weak, and suffering from stomach cramping. He then began experiencing diarrhea. After doing online research, his family became concerned that he was suffering from an infection called clostridium difficile (c diff.). The nursing home assured his family that he did not have c diff. The nursing home said he was suffering from a mildly irritated stomach. Two days later, he was taken to the hospital where he was diagnosed with c. diff. The infection had progressed to cause a systemic illness called sepsis. He died from organ failure caused by untreated c. diff. The jury returned a verdict for $5,000,000. This was double the highest recorded verdict in the county’s history.

Bedsores

Robert lived at home with his wife. He began experiencing signs of dementia, including forgetfulness and wandering. For his safety, his family had him move into a nursing home. Within weeks, Bob was no longer walking and was almost always in his wheelchair or bed. When his family complained, they were given short, inconsistent answers but always told he was doing well. They received a call from the local hospital that he was being admitted with a large bedsore (pressure injury) that was infected. This is the first time the family learned he had a bedsore. He underwent numerous surgical procedures to help the wound heal. He ultimately died as a result of the toll the bedsore and infection had on his body.

Physical Assault

Dolores was an elderly resident of a nursing home in Cincinnati, Ohio. She had dementia. Like most dementia patients, she was vulnerable and unable to protect herself in the event of an attack. While she was sleeping, a confused and agitated resident entered her room. She placed her hand over Dolores’ mouth, choked her, ripped her off of her bed onto the floor, and dragged her across the room. In the attack, she suffered multiple fractures to her shoulders. Rather than send her to the hospital, staff put her back in bed. Dolores declined over the following days. She was only sent to the hospital when nursing staff found her unresponsive. By the time she arrived at the hospital, she was in respiratory failure. The trauma of the fractures and the impact of the assault had caused her to deteriorate and suffer pneumonia. This is common after suffering severe fractures in the elderly. She died from complications of the fractures.

These are just a few of the hundreds of cases we are currently handling or have recently handled where negligence caused a resident’s death.

How Much is My Nursing Home Wrongful Death Case Worth?

Every case is unique and has to be evaluated on its specific facts. The only way to determine the value of your nursing home fall case is to begin an investigation.