Losing a loved one for any reason is a tragic experience. But when the death is the result of another person’s negligence—especially the negligence of a caregiver—the trauma can be particularly difficult to bear. If a member of your family has died due to nursing home abuse or negligence, nothing can undo what has happened, but you may be able to hold the at-fault caregiver or facility accountable and recover monetary damages by bringing a wrongful death claim.
Read on to learn three important facts about these cases:
1. Two Separate Claims May Be Brought After a Wrongful Death
If your loved one was a victim of wrongful death in a nursing home, it may be possible to bring both a wrongful death claim and a "pain and suffering" claim. The first cause of action is pursued by surviving loved ones and seeks compensation for lost social security, lost inheritance, medical costs related to the fatal injury or illness, and burial and funeral expenses. The second cause of action is brought by the personal representative of the deceased’s estate and seeks compensation for emotional trauma and physical pain the deceased experienced prior to death. Often, these two actions are combined into one lawsuit and brought to court together.
2. Most Nursing Home Wrongful Death Lawsuits Are Filed on the Basis of Negligence
New York law defines wrongful death as a death caused by a wrongful act, neglect, or default. Most nursing home wrongful death lawsuits are filed on the basis of negligence, which means the death was caused by the defendant’s breach of the duty of care owed to the deceased—for example, by abusing the deceased or failing to use the appropriate standards of care given the circumstances. Evidence of negligence may include photographs of bruises or restraint marks, surveillance footage, caregiver keycard data, the nursing home’s operating and training procedures, deposition from eyewitnesses, deposition from expert witnesses, and the decedent’s medical records.
3. Only the Personal Representative of the Deceased’s Estate Can File the Wrongful Death Lawsuit
Pursuant to New York Estates, Powers and Trusts Law, Article 5, a wrongful death lawsuit must be filed by the personal representative of the deceased’s estate. This representative may have been named in the deceased’s Last Will and Testament. If no will exists or if it was improperly drafted, a personal representative will be appointed by a surrogate’s court.
Discuss Your Case with a Nursing Home Abuse Lawyer in New York
The laws that govern wrongful death lawsuits in New York are complex, and the path to a fair settlement or verdict is riddled with legal hurdles. You can expect the nursing home and their insurance company to resist your claim at every turn. The seasoned nursing home abuse lawyers at Leitner Varughese can help you navigate the proceedings and fight for the highest possible compensation.
We have won more than $100 million in nursing home negligence and malpractice cases. To discuss your claim in a free consultation, send us a message or call 855-585-2969.
