Dementia: Tearing Down


the Wall of Fear by Leslie Hayes Russo


“Getting old,” my Aunt Fran used to say, “is not for the


faint-hearted.” Nor, she might have added, is caretaking for the faint-hearted, particularly when the elderly parent or relative has Alzheimer’s disease or some other form of dementia. The challenge can be daunting: arranging or attending doctor’s visits, weathering troubling ups and downs and recurrent hos- pitalizations, and maneuvering around a complicated system of insurance reimbursement. Residence in a nursing home or assisted living setting is often inevitable. This article concerns the additional, often unspoken hurdles


advocates face when speaking to a jury about the loss of a member of the family with Alzheimer’s or dementia. In a medical malpractice case involving the wrongful death of a nursing home or assisted living resident, particularly one with dementia, the argument is made, explicitly or implicitly, that the family has been spared the unimaginable horrors of watching their loved one’s further mental and physical deterioration. The argument is made, explicitly or implicitly, that the decedent is better off. There is the suggestion that the individual who has succumbed was already at the zenith of his or her life expec- tancy, that the death, though regrettable, is therefore something of a so-what. And yet. My Great Aunt Alice, at 102, spoke to me of the “welcome


burden,” or the “better half” of love’s equation. She had wel- comed the “burden” of tending to her mother and father as they became ill and suffered from atherosclerosis. She was grateful for the opportunity to pay her parents back for their many years of self-sacrifice and devotion. If one of her parents had been wrongfully taken due to malpractice, Aunt Alice would, despite their dementia, have felt robbed. If she had been asked to describe that loss, she would not have focused on her loss of their love and succor; she would have emphasized the loss she sustained because she was deprived of further bestowing her own love upon them. She would have described the loss of the joy of reading to her father, who, despite imperfect com- prehension, was inevitably soothed by her voice. She would have described the pleasure of brushing her mother’s hair, or rubbing her mother’s back, even when her mother confused her with her sister. She would recall the simple joy of making sure that her parents still listened to music, even if they could no longer recall the name of a favorite composer or that the tenor was Caruso. She would have spoken of the indisputable moments of recognition and the deepening, not lessening, of


Winter 2009 Trial Reporter 15


the parent-child bond, despite all. Their death, she would have explained, would have deprived her of the gift of giving. So often the loss we ask our clients to describe to the jury is


the loss of the receiving side of love. What do they miss most about their mother? What did their father do for them? The loss of the giving side of love and the joy derived from that giving should not be ignored when we speak to the jury of the effects of the loss of one who suffered from some form of dementia. To speak only of the loss to our clients of their parents’ affection for them is but half the cup. And what of the implication that the decedent is better off?


Given the attitude of much of the medical community and re- porting media about Alzheimer’s, defense counsel hardly need raise the suggestion that death is preferable to the disease. It will be foremost in the jury’s thoughts. As one woman who was diagnosed with AD wrote, “Can it be that the term ‘Alzheimer’s’ has a connotation similar to the ‘Scarlet Letter’ or black plague?


(Continued on page 17)


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