Today is a poignant day as the settlement check arrived for a wrongful death case brought against a Queens nursing home. The case involved the death of a retired homemaker and grandmother, a woman deeply missed by her family. No lawsuit or court action can undo the loss this family has experienced. At the same time, pursuing justice has allowed this family to honor their mother and grandmother. Like all wrongful death cases, winning or settling a case brings the satisfaction of holding the defendant accountable for their actions and often force changes in policies, procedures or behavior to prevent future deaths. In this case, we also involved the State Department of Health to investigate the nursing home.
Determining the value of damages in a wrongful death suit can be very complicated and raise both legal and emotional concerns. The damages are not the measure of a deceased person’s life. After all, how does one put a dollar value on the love of a mother for her children and a grandmother for her grandchildren? It is a calculation based on what the law and the courts allow. In this case, the settlement is a last gift of a loving mother to her family.
Facts of the Case: Improper Nursing Home Care and Falsification of Records
This case began when the now deceased woman entered a Brooklyn hospital for treatment of abdominal pain. She underwent surgery for a hernia repair and a small bowel resection. After the surgery, she suffered a stroke, which rendered her unable to move her arms. Her condition required the insertion of a tracheotomy tube in her throat to make breathing possible. The woman lay in the hospital for nearly a month when doctors discharged her and the family arranged to move her to a skilled nursing facility that could provide the necessary care and rehabilitation services.
Like all families, the woman’s adult children sought the nursing home that would provide the best possible care for their mother. The woman arrived at the nursing home, located in Queens, at eight o’clock in the evening. One of her daughters spent time with her mother that first evening making sure that all was okay and visited her the following day as well, leaving at nine o’clock that night.
By the 7 a.m. the next morning, staff found the woman in severe respiratory distress. An ambulance arrived to transfer her to the hospital where she was pronounced dead.
What happened? What went wrong overnight that resulted in this woman’s death? The nursing home staff failed to properly insert a tracheotomy tube. The tube became dislodged so that it was no longer going into the trachea, but was pressing into her tissue. As a result, the woman suffered from a lack of oxygen. The failure to properly insert the tracheotomy tube was identified as the primary cause of death by the New York City Medical examiner. The autopsy lists the cause of death as “complications following dislodgement of tracheotomy tube placed for ventilatory support.” To compound the medical malpractice of failing to insert the tracheotomy tube, the staff failed to monitor the woman’s care. As a result, the staff did not know that the woman spent hours in distress.
The nursing home initially denied the charges. They tried to blame the victim, claiming that she had pulled the tube out, an absurd charge given that the woman’s stroke had left her unable to move her arms. The nursing home also pointed to entries in the records that seemed to claim that staff had monitored the patient. Using medical experts to examine the records, we were able to show that there were false and backdated entries in the record. When the nursing home rejected an early settlement proposal, we moved forward with the lawsuit. To build our case, we deposed five current and former employees of the nursing home and used that testimony to document the backdated entries and the failure to monitor the patient. Shortly before the start of the trial, the defendant agreed to settle the case.
The family believed from the start that their mother died as a result of medical malpractice. They sought legal help and consulted with several attorneys, each of whom rejected the case. Why? They expressed doubts about the ability to prove medical malpractice case against a nursing home for a patient who had already suffered a stroke.
When I listened to the woman’s daughter describe her mother’s plight, I could see the possible grounds for malpractice. It seemed worthwhile to conduct an investigation. I made no promises to the family other than to investigate the case. Once I received the medical records, including the autopsy, and worked with medical experts, the medical malpractice became clear.
Determining Compensation for the Wrongful Death
Those first lawyers felt that even if they could prove medical malpractice, they could not prove sufficient damages to earn enough money to make the case worth their while. New York limits the grounds on which one can collect compensation in a wrongful death suit. The most common grounds include:
- Loss of Pecuniary Income: This is the money that the deceased would have provided to survivors had he or she lived. It is not the same as the income the deceased would have earned; pecuniary income subtracts the money the deceased would have spent on herself. One can include projected earned income, benefits, pension plans and other sources of income and value in determining this economic loss. One can assign a monetary value for worked performed in the home by a stay-at-home parent.
- Pain and Suffering: New York allows for pain and suffering to be paid to the estate on the victim’s behalf. The pain and suffering can include pre-incident terror the victim may have experienced.
- Loss of Parental Guidance: New York law allows for compensation for the guidance that a parent would have provided to children. The deceased need not have been the actual parent, but could have been a legal guardian or otherwise acted in a parental role. The compensation would apply to minor children and any children still living at home and dependent upon the deceased.
- Compensation for Medical Expenses: New York law allows for compensation of medical expenses incurred by the deceased.
- Compensation for Funeral Expenses: New York law allows for compensation for all funeral expenses.
- Punitive Damages: New York law allows for payment of punitive damages in especially egregious cases, though that is rare in New York.
In this case, the woman had no income, so there would be no compensation for the loss of pecuniary income. Since her daughters were adults, there would be no compensation for the loss of parental guidance. There were no uncovered medical expenses and the case did not rise to the level where punitive damages would apply. The prospects of proving that a woman paralyzed from a stroke had suffered prior to her death looked daunting, especially given the apparent difficulty of proving medical malpractice. New York law does not allow compensation for loss of companionship or grief and sorrow. Looking over the possible sources of compensation, the first attorneys rejected the case because there was no money in it.
How did we find compensation in the case? We knew we could collect for the funeral expenses. By listening to the family, I learned that a granddaughter lived with the woman and the law allows for compensation for the loss of parental guidance as provided by grandparents. We also pursued compensation for the woman’s pain and suffering. Once we saw that we could prove that the woman spent hours with insufficient oxygen, we sought expert medical opinions that could prove that despite the woman’s stroke, she would have experienced the pain and terror of slowly losing her oxygen. This realization was hard for the family to accept and motivated them to want justice for the harm done to their mother. It also provided the basis for substantial compensation.
A Wrongful Death Settlement that Provides a Legacy
In this case, the family made a difference in their dogged insistence that their mother receive justice and they made a difference in the support they lent the case. By conducting a rigorous investigation, by bringing in the right medical experts, by examining the case law for opportunities and looking for creative solutions, we were able to take what several attorneys saw as a zero pay case and turn it into a $625,000 settlement.
The settlement has become a last, loving gift from a mother to her family. One daughter may use her share of the settlement to put money down on a house, another daughter will use her share to support a business she just started and the granddaughter now has the funds to pay for college. The family’s pursuit of justice and compensation has truly made a difference.
I hope you found this information helpful. If you have questions about a wrongful death or medical malpractice case, you should consult with a New York attorney experienced in handling these cases. I would be glad to offer you assistance. You can email me or call my office at 1-800-660-1466. There is never a charge for this consultation.
Carol L. Schlitt
New York Personal Injury Attorney
New York Law Thoughts
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.