The Dickson Firm, L.L.C. represents nursing home residents and their families in cases against the owners and the operators of nursing homes throughout the State of Ohio.
Tragically, we receive calls on a regular basis at The Dickson Firm from people whose loved one has died as a result of neglect or abuse in a nursing home.
Many, if not most, of the cases that we handle are wrongful death cases. When many families call, they do not understand their rights with respect to bringing a claim for wrongful death.
They also do not understand the timing of a wrongful death case. These are very important considerations.
If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1-800-Ohio-Law as we would be happy to talk with you and help you in any way that we can.
The first category of claims when a nursing home resident has died as a result of neglect are survival claims. These are the claims that survive the resident's death. If a resident is injured in a nursing home, if a resident falls and suffers a fracture and needs surgery for example, that resident would have a claim for personal injury against the owners and the operators of the nursing home.
They would have a claim for the pain and suffering that they endured.
They would have a claim for their loss of enjoyment of life.
And they would have a claim for the medical bills that they incurred for the injuries that they suffered as a result of neglect of the nursing home.
Pain refers to actual physical pain. Imagine pricking your finger with a pin. That would cause you physical pain. Nursing home residents have a claim for the physical pain that they suffer as a result of the injuries that they suffer as a result of neglect of the nursing home.
Suffering is different than pain. Suffering relates to emotional suffering as a result of their injuries. If instead of living their life, they are stuck in a hospital bed recovering from their injuries, forced to endure painful treatment and painful rehabilitation, that is suffering. Often after a resident suffers an orthopedic injury and has surgery, the medical staff wants to get that resident up as soon as possible and get them moving around. Lack of mobility is the cause of a number of complications, including pneumonia and skin breakdown. However, it can be very painful to walk after the surgical repair of an orthopedic fracture. This rehabilitation would involve both, physical pain and suffering. The nursing home is obligated to compensate the resident for their pain and their suffering.
Loss of enjoyment of life refers to the fact that the resident cannot do the things they used to do because of the injury that they suffered as a result of the neglect of the nursing home. Loss of enjoyment of life may be temporary or it may be permanent. For example, a resident may be stuck in the hospital recovering after surgery. As a result, they may miss their daughter's wedding or their granddaughter's high school graduation. This would be a loss of enjoyment of life. This would be a loss of their ability to enjoy the normal aspects of their life. If they are recovering from an injury instead of enjoying activities that they love, this is loss of enjoyment of life. The nursing home resident is entitled to hold the nursing home accountable for those losses.
Finally, if the resident incurs medical bills for medical treatment that they need as a result of the medical care that they received for the injuries they suffered as a result of neglect of the nursing home, those bills are also part of their damages.
If the resident is alive, they can bring all these claims on their own. If the resident dies, then their estate can bring these claims. These claims survive their death which is why they are called survival claims.
The next category of claims are the wrongful death claims. The wrongful death claims belong to each of the next of kin. If a resident dies as the result of neglect of the nursing home, each of the next of kin is entitled to bring a claim for their losses. They are entitled to bring a claim for their mental anguish and they are entitled to bring a claim for their loss of society.
Mental Anguish
Mental anguish refers to the emotional suffering endured by the next of kin as the result of the death of the resident.
Loss of Society
Loss of society refers to the fact that each of the next of kin had a valuable relationship with the nursing home resident and that relationship has been taken away because of the resident’s death, resulting in a loss.
Only the Personal Representative of the decedent’s estate is entitled to bring a wrongful death claim. If a resident dies as the result of neglect or abuse of the nursing home, the family must open up an estate with the probate court. The probate court must appoint a Personal Representative for that estate. Here at The Dickson Firm, we help families every day open estates for their loved ones so that we can pursue a wrongful death claim on their behalf.
The damages for the survival claim described above belong to the estate. That recovery, that money, becomes an asset of the estate just like the money and the property that the resident owned at the time of their death. That asset passes to the resident's next of kin. If the resident has a will, then the money passes as dictated by the will. If the resident does not have a will, then the money passes pursuant to the laws of descent and distribution. The resident is said to have died intestate. The money would then go first to the resident's spouse if they were married. Next it would go to the resident's kids if they had children. Next it would go to the resident's parents if their parents are still alive. Thereafter, it would go to their siblings. And thereafter to any of their other next of kin based on their level of consanguinity or their level of kinship to the decedent.
Theoretically, each next of kin would receive compensation for their losses, their mental anguish and their loss of society as described above. As described below the Probate Court would need to approve the distribution to the next of kin.
While the lawsuit needs to be filed in the name of the Personal Representative of the estate of the decedent as appointed by the Probate Court, each of the next of kin's relatives can potentially make a claim. It must be noted that only the Personal Representative appointed by the probate court can bring the lawsuit.
There is a statute that provides that any number of next of kin can file a lawsuit on behalf of a nursing home resident who has been neglected or abused. There is a time period within which a lawsuit must be filed, which we will discuss below. If that time period is close to expiring, any number of relatives can bring a lawsuit against the nursing home for neglect and abuse.
However, ultimately, an estate has to be opened and a Personal Representative has to be appointed. Only the Personal Representative is legally authorized to bring the wrongful death case. The Personal Representative brings the wrongful death case on behalf of each of the next-of-kin and that person has a fiduciary duty to each of the next of kin to present their claims. The Personal Representative is also the person who has the authority to hire a lawyer to pursue the case and to ultimately settle the case. The Personal Representative of the Estate and the lawyer they hire must represent all of the next of kin and present their claims.
There are two categories of next of kin. There is a category of next of kin who are presumed to be harmed by the resident's death. This includes the resident's spouse, their children, and their parents. All of the other next of kin are in a second category. And while they are not presumed to have suffered damages, they can make a claim for damages.
There was a recent statute passed, which indicates that if anyone from the second category wishes to bring a claim, they have to file a notice of claim with the probate court. One of the first things that we do at The Dickson Firm, having been retained to pursue a wrongful death case, is to reach out to all the next of kin and determine who would like to make a claim. If there is anybody from the second category of next of kin who would like to make a claim, we file a notice of claim on their behalf.
There are two main time periods with respect to bringing a wrongful death claim. These time periods are known as the statute of limitations for these claims.
The first time period is the time period for bringing the survival claims. A claim against the nursing home is considered a medical claim in Ohio. The time period for bringing the medical claim is one (1) year from the date the resident knew or should have known that they had received substandard care or one (1) year from the date that they stopped treating with the potential Defendant for the condition complained of, whichever date is later.
The discovery rule refers to the one (1) year time period from the date the resident knew or should have know that they had received substandard care. It should be noted that this is one (1) year from the date the resident knew or should have known that they had received substandard care, not one (1) year from the date their family knew or should have known. If something happens that puts the resident on notice that they received substandard care, like a fall resulting in injury or a bedsore, that would typically start the one (1) year time period running. This is known as a cognizable event. All falls are not the result of neglect. The fact that a person falls does not necessarily put them on notice that they have received substandard care. But it certainly can.
The second time period is the last date the person treated with the potential Defendant for the condition complained of. The theory with this time period is that if a person is treating with a doctor and the doctor provides substandard care, the law was designed so that that doctor has the opportunity to try and remedy the situation without the patient being forced to sue them for malpractice. In the nursing home context, if the resident stayed at the nursing home and was receiving care for the injuries that they are complaining of, then that statute would not begin to run until they either stopped receiving care for that condition or they left the nursing home. For example, if a resident fell and broke their hip and had surgery, as long as they were in the nursing home and they were receiving care for that broken hip, that one (1) year statute of limitations would not start to expire. If the resident left the nursing home, then that one (1) year time period might start to expire unless, the circumstances were such that the resident left the nursing home and was not aware that they had received substandard care.
If a resident has Alzheimer's or dementia or is otherwise mentally incompetent, then the statute of limitations for their survival claims never begins to expire during their lifetime. It would begin to expire as of the date of their death.
The survival claims have to be brought within one (1) year as described above. The wrongful death claims need to be brought within two (2) years of the date of the resident's death. As indicated above, an estate needs to be opened, a personal representative needs to be appointed, and then the lawsuit needs to be filed in the name of the personal representative within two (2) years of the resident’s death.
There is current litigation where certain defense attorneys on behalf of certain Defendants in medical claims are arguing that wrongful death claims need to be brought within one (1) year of the date of the person's death. Here at The Dickson Firm, we do not think that that argument has any legal basis nor merit. The statute is crystal clear that you have two (2) years from a person’s death to bring a wrongful death claim. However, that argument is out there.
This is why it is imperative, if you believe that you have a claim on behalf of your loved one, to promptly call us here at The Dickson Firm at 1 800 OHIO LAW as soon as possible so we can analyze your case and we can make sure that your claim is filed in a timely fashion. If you wait too long then your claims will be forever time barred.
Every settlement of every claim for wrongful death here in Ohio must be approved by the probate court. When the claim is resolved, whether by way of settlement or a jury verdict, certain documents have to be prepared to be filed in the probate court. The family has to file an application seeking approval of the settlement. The family has to seek approval of the proposed distribution to the various next of kin. If all of the members of the family agree as to how the proceeds should be distributed, then the application can be filed accompanied by waivers signed by the various next of kin in which they each communicate that they are in favor of the proposed settlement and they are in favor of the proposed distribution. If the family is not in agreement, then a hearing will be set and each of the next of kin will be given the opportunity to appear and explain to the probate court how they think the proceeds should be divided. Here, at The Dickson Firm, we are frequently in probate courts throughout the State of Ohio seeking approval for the settlements of our various cases and seeking approval of a distribution that is in the best interest of each of the family members. We are known in many of the probate courts in Ohio, as we have appeared there frequently on behalf of the many families represent.
Here at The Dickson Firm, we handle our cases on a contingent fee basis. Repayment of the expenses we advance is also contingent on making a recovery. We are repaid the expenses that we advance from the recovery that we make. In a wrongful death case, we would need to seek approval from the probate court of reimbursement for all of our expenses. We submit an itemization of our expenses in order to obtain reimbursement and the Probate Court has to approve it. Our fees also have to be approved by the probate court.
Both our fees and reimbursement of our expenses are contingent on making a recovery. If we do not make a recovery for our client, then the client does not owe us anything for our time and they do not have to repay us for our expenses.
One of the only ways to hold Nursing Homes accountable for bad care is to make a claim for the injuries that they cause and the deaths they cause.
One of the only ways to hold nursing homes accountable for bad care, particularly for causing the wrongful death of their residents, is if the family chooses to pursue litigation. The Ohio Department of Health does survey all nursing homes and does sometimes issue fines against these nursing home. However, they do not always issue fines and when they do, the fines are often woefully inadequate. The way to hold nursing homes accountable is to pursue litigation when they have caused the wrongful death of a resident. It is also the way to change their behavior. It is the way to increase the likelihood that they will provide better care in the future. If they are held accountable for the harm they cause to the residents when they provide substandard care, they are less likely to provide substandard care and they are more likely to provide better care.
Nursing homes are businesses. They are run for profit. They often have investors. And those investors, and those for-profit companies, make decisions based on money. One of our goals here at The Dickson Firm is to make bad care more expensive than good care. When a nursing home provides bad care, we endeavor to hold that nursing home accountable and make that bad care expensive so that they will provide better care in the future. Holding a nursing home accountable for the wrongful death of your loved one not only honors your loved one and helps provide compensation to your family, it also improves the level of care for nursing home residents in the future in both the nursing home that you sue and in other nursing homes. Nursing homes hear about lawsuits. They hear about jury verdicts. And they are motivated to provide better care if they are concerned that they will be held financially accountable for providing bad care.
If someone you love has been neglected or abused in a nursing home, please call us here at The Dickson Firm at 1-800-OHIO LAW as we would be happy to talk with you and help you in any way that we can.
