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This content is for informational purposes only and is not intended to provide legal advice.
Wrongful death is when a person dies because of the negligence or misconduct of another person or entity like a nursing home. Nursing homes deal with ill and dying patients on a daily basis, and it is often difficult to spot a wrongful death. If you want to prove wrongful death, you must prove at least three things:
- The entity or person had a duty of care
- The duty was breached by negligence or misconduct
- The breach was caused by the entity entrusted with the care
- The patient suffered injuries or loss due to the breach of care.
How to Spot Abuse
Nursing home abuse or neglect can be subtle, so it’s important to check on loved ones in nursing homes to monitor their condition. Frequent visits can prove difficult during the Covid-19 restrictions, but you could look for these signs:
- Evidence of assault
- Dehydration
- Broken bones
- Insufficient protection against falls
- Signs of malnutrition
- Bedsores, medically called pressure ulcers, which result from not turning patients to relieve pressure
- Improper medical care
- Untreated conditions
- Sepsis, a condition where the body destroys its own tissues to fight infection.
Nursing homes have an obligation to provide treatment and care to all ill patients — even for those who are considered terminal. Staff members, owners, and administrators can all be held liable for medical misconduct or negligence.
The statute of limitations of wrongful death claims varies by state, but they usually must be filed within two years of the victim’s death.
Who Can Benefit from a Wrongful Death Claim?
The next of kin can file independently or as a group for a close relative’s wrongful death. The suit generally opens an investigation into the claim. Other relatives could also file a claim depending on some circumstances — such as the most immediate relatives — spouses, parents, or children — failing to take action.
Close family members can file a wrongful death suit in any state, but the rules vary for life partners, putative or common-law spouses, and financial dependents. In New York, these dependents can file as easily as immediate family members. The law also allows sisters, brothers, cousins, and other relatives to file a wrongful death lawsuit if they haven’t been appointed as guardians. However, the claim isn’t allowed if a more immediate family member chooses to file the claim.
Sometimes, even people who can prove they have a vested financial interest in the deceased can file for damages — even if they are not related. This includes debtors and those who can prove other economic losses caused by the death — such as the unfulfilled terms of a financial contract or impending lawsuit against the deceased.
Proving a Wrongful Death Case
Proving a wrongful death can be tricky because you’re fighting against a well-coached team of professionals who aren’t always inclined to admit the truth. Also, rules may vary greatly from state to state. For instance, in New York state, you must prove the following conditions to win a case against a nursing home:
- The death occurred while under the care of a nursing home staff member.
- The death was caused by the wrongful actions or negligence of someone responsible for the victim’s care.
- The decedent would have likely filed a personal injury lawsuit if aware of the abuse.
- There is at least one survivor or financial dependent of the deceased.
- There are damages that the victim’s estate could recover.
That is why the most important asset in a nursing home abuse case in The Empire State is the right New York wrongful death attorney. You want someone who has vast experience in nursing home wrongful death cases and who has a high-quality investigative team to uncover the truth.
What is more, you must be wary of any attempt by the nursing home to shunt the matter to arbitration. Even if you agreed to arbitration when placing a person in a nursing home by signing on the dotted line, several courts have ruled that wrongful deaths can’t be settled by arbitration if the family insists on going to court.
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This content is brought to you by Charles Britton.
Photo: Shutterstock
