Last week our law firm had to inform a family that we would be unable to help them pursue a claim for the wrongful death of their loved one (“Mary”) which resulted from the neglect of a nursing home. Our inability to help this family was not because our firm felt the nursing home should not have been held accountable. It should have been.
Our firm handles many nursing home neglect and abuse cases, and we have seen this familiar nursing home scenario many times. The elderly patient in this case was disabled, bed-ridden, required nursing assistance to move about safely. For safety purposes, the care plan developed by the nursing home itself required two staff persons to assist Mary whenever she was transferred from her bed to her wheelchair. Unfortunately, this care plan requirement was violated by the facility’s nursing staff. Why? Because of the nursing home administration’s decision to cut corners by under staffing the facility. Without enough nurse aides on duty to take care of the facility’s patients, a single nurse aide attempted to transfer Mary by herself. After sitting Mary up on the side of her bed, the only nurse aide present turned away. Before the nurse aide turned back, Mary tumbled off the bed and shattered her femur upon impact with the floor. Mary later underwent surgery to repair the traumatic injury. Ultimately, however, Mary died due to complications from the surgery, some of which stemmed from the use of strong pain medications needed to address her intense suffering.
So, why can’t this nursing home be held accountable for this clear and obvious care failure? Because Indiana’s wrongful death laws protect nursing homes, drunk drivers, and other wrongdoers when the victim dies without a living parent, spouse or child. The fact a victim may have other family members who are were significantly involved in the victim’s life doesn’t matter under Indiana’s wrongful death laws.
In this case, Mary’s parents had died before her and Mary had no living spouse or child at the time of her death. Mary did, however, have a close sibling and other family members who loved her and visited her often.
Mary’s family wanted to pursue a wrongful death claim to force the nursing home to take responsibility for its profit-driven choice to employ too few nursing aides and subject all of the facility’s patients to unnecessary danger. Unfortunately, Indiana’s laws won’t allow it. Indiana’s wrongful death laws not only deny claims for punitive damages, but also prohibit any recovery by her surviving sibling and other family members for the loss of Mary’s love and companionship. Moreover, Indiana’s wrongful death laws do not allow compensation for Mary’s shortened life or even for the pain and suffering Mary experienced from this neglect before she died.
One may think the protections afforded the wrongdoer must be an accidental loophole in the law. It is not. These legislative limitations result from lobbying efforts by big business and insurance companies which seek to minimize the financial consequences the negligent actions by their employees and insureds will have on their bottom line. What is forgotten, however, is the impact these protections favoring the wrongdoer have upon our own safety and the wellbeing of those we love.
It has been well established that Indiana nursing homes rank among the worst in the country. (See for example, AARP Warns of Poor Performance By Indiana Nursing Homes and Indiana Ranks Among Worst In Healthcare Quality and Patient Safety.) The failure of Indiana laws to hold wrongdoers meaningfully accountable whenever they negligently kill a human being affects all of us. If there is no penalty for negligent decisions that value profits over patients, what incentive is there for Indiana’s nursing home industry to change its ways?
We think our laws should hold nursing homes and other wrongdoers responsible for ALL human lives they end through negligence and abuse.
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