Nursing Home Litigation


Available Damages in Nursing Home Abuse Cases


Gregory L. Lockwood L


itigating nursing home cases involving substandard care presents unique challenges when it comes to recovering damages. Generally, elderly and disabled


clients who live in nursing homes and assisted living facilities have neither lost earning potential nor lost wages. In addition, a client who is already severely impaired has limited ability to request compensation for physical impairment. And a resident who has died may have few surviving beneficiaries to bring claims for wrongful death.


Assessing the potential for damage awards in these cases involves an analysis of several factors:


1. Can the emotional and physical injury caused by neglect or abuse be separated and proven apart from the resident’s underlying disability or disease;


2. How has the injury affected the resident’s prognosis, including his or her life expectancy and ability to enjoy life; and


3. Is it possible to prove that a deceased resident’s statutory beneficiaries are deserving recipients of compensation for wrongful death.


A nursing home resident’s preexisting conditions often are so debilitating that any injuries caused by abuse or neglect may be irrelevant to the resident’s condition, life span, or quality of life. Separating the harm caused by the alleged neglect or abuse from the harm caused by preexisting conditions involves detailed examination of the resident’s condition, not only at the time of the neglect or abuse but also in the days, weeks and months preceding it. Investigations of preexisting conditions should include how


long any such conditions existed and whether they were successfully treated or controlled with medication. Such investigations also should determine whether these conditions were known to the defendant nursing home at the time of the resident’s admission to the facility. In effect, a nursing home that has accepted a patient with known preexisting conditions has asserted that it can provide adequate care for that resident. If medical testimony can show that a preexisting condition eventually would have led to the resident’s death, it must be determined whether the nursing facility’s conduct lessened the ability to enjoy the life that remained or hastened the death. If it can be shown that the abuse or neglect accelerated death caused by a preexisting condition, the nursing home defendant should be held liable. Of importance to your elderly clients, trial courts will instruct,


and damages may be had, for aggravation of a previous medical condition. MCPJI 10:3, “Susceptibility to Injury,” provides: “Te effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff.


In


other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled.” MCPJI 10:4, “Aggravation of Previous Condition,” goes on to provide: “A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition.” In the nursing home context, this means that your client, who could, for example, use the bathroom with assistance, may seek and recover damages following a failure to follow fall precautions resulting in a fractured hip. Or the client who has diabetes or peripheral vascular disease may seek and recover damages from the failure to follow skin protocols, resulting in a pressure ulcer. In Maryland, there are three main types of cases that


may be brought on behalf of an elderly client depending on whether the client is alive or has died, traditional malpractice, wrongful death, and breach of contract actions. In addition, the Maryland Consumer Protection Act and the Medicare Secondary Payer Act provide also offer avenues for recovery.


Trial Reporter / Fall 2011 41


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