Nursing Home Wrongful Death Lawyer

Key Takeaways

Wrongful death claims that arise from nursing home deaths are set by state law. Each state's wrongful death statute decides who may sue, what damages the law may allow and how long survivors have to file. Those rules are not the same from one state to the next, and no state's rule is the rule everywhere. The sections below refer back to this point rather than repeat it.

There is no single national deadline. Limitation periods differ by state. Missing the deadline that applies can bar the claim entirely, whatever the facts show.

One federal rule applies only when the federal government runs the facility. For a death in a VA Community Living Center or another federally operated facility, 28 U.S.C. § 2401(b) bars a tort claim against the United States unless it is presented in writing to the federal agency within two years after the claim accrues. 28 U.S.C. § 2675(a) requires that presentation before a lawsuit may be filed.

State Veterans Homes are run by states, not the VA, and that federal rule does not apply to them.

A death is not proof of negligence. A claim has to show four things: a duty of care, a breach of that duty, causation and damages.

Bedsores, falls, infections and weight loss can have more than one explanation. Clinical and factual uncertainty is part of every one of these cases. Whether a family's concerns rise to a legal claim depends on the records, the resident's medical condition and the law of the state involved.

When a Nursing Home Death May Lead to a Wrongful Death Claim

Wrongful death is a civil claim brought by survivors, or by the estate, when a death results from another party's wrongful act, neglect or default. It is not a criminal charge. It asks whether someone with a legal responsibility for the resident failed in it, and whether that failure caused the death.

Every claim rests on four elements:

• Duty means a legal obligation to provide a certain level of care. A nursing home generally owes its residents a duty of reasonable care, and certified facilities also operate under the federal nursing home regulations.
• Breach means the care given fell short of that obligation.
• Causation means the shortfall actually led to the death, rather than an illness or condition that would have taken its course anyway.
• Damages means losses that the applicable state's law recognizes.

Certain circumstances come up again and again in these cases. They include pressure wounds that went untreated for a long time, medication errors, falls where supervision was in question, dehydration or malnutrition, and physical abuse by staff. Each is a circumstance, not a conclusion. A fall can happen in a well-run facility to a resident with failing balance. A pressure wound can develop in a frail person despite turning and repositioning. Dehydration can follow an acute illness. The page on nursing home neglect explains why an injury alone proves nothing, and the guide on bedsore claims treats that injury in more depth.

What turns a circumstance into a claim is the evidence. That means what the care plan called for, what staff documented, what the resident's diagnoses were, and how quickly changes were recognized and acted on. Two deaths that look alike from the outside can come out differently once the records are read.

For a family, the elements offer a frame for the questions they already have: what the facility was supposed to do, what it did, and whether the difference mattered. Those questions are a reasonable starting point for a conversation with an attorney, even before anyone knows the answers.

Who in Your Family May Bring a Wrongful Death Claim After a Nursing Home Death

Who may bring the claim is a question each state answers in its own wrongful death statute. In many families this is the first practical surprise, because the person most involved in a parent's care is not always the person the law designates to file.

The people a state statute may name usually fall into a few categories. They include a surviving spouse, children, parents and the personal representative of the deceased person's estate. The personal representative is the executor or administrator appointed to handle the estate. Which of these people appear on a given state's list, and in what order of priority, differs by state.

The path to court can also look different for your family depending on the state. In some states, the estate's personal representative brings the claim on behalf of the survivors the statute names, so the first question may be whether anyone has been appointed. In others, certain survivors may file directly. And in some situations, the person bringing the claim has to be formally appointed before filing.

For families, this can matter in quiet ways. An adult child who visited every day may not be the authorized claimant if a surviving spouse is living, or if the statute requires a personal representative and none has been appointed. Siblings may hold different views about whether to go forward. None of that is unusual, and none of it decides whether the underlying facts support a claim. It does decide who has the legal ability to bring one.

If your family is unsure who holds that role, a conversation with an attorney can clarify how the applicable state's rules fit your family's circumstances, including whether an estate has been opened and who was named in it.

Who May Be Named as a Defendant

A nursing home is often not one legal entity. The name on the sign, the company that holds the operating license, the company that owns the building and the company that manages daily operations may be separate businesses. For a family, that means the facility you dealt with day to day may be only one of several parties connected to your loved one's care. Each type of party is named only where the facts connect it to the death.

Depending on what happened, the parties a family may see named include:

• the facility operator, which runs the home and employs or supervises most of the care staff;
• the facility owner, which may be a separate entity from the operator;
• a management company, if a separate business made decisions about staffing, budgets or policies;
• a staffing agency, if the nurses or aides involved were supplied through one;
• a medical director or treating physician, if clinical decisions about diagnosis, treatment or medication are at issue;
• the manufacturer or seller of a medical device or pharmaceutical product, if a defective product is alleged to have contributed to the death;
• a maintenance contractor, if a physical condition of the facility, such as equipment or a fixture, is at issue.

The manufacturer and seller category falls under product liability, the area of law that holds the makers and sellers of products responsible when a defect in the product causes harm. A product claim asks different questions from a care claim. It asks whether the product had a defect and whether the defect caused the death, not whether staff met a standard of care.

A claim against a physician may raise different procedural rules than a claim against a facility, and corporate relationships have to be traced through records rather than assumed. What this means for a family is that the question of who is responsible is often answered by documents, not by the name on the building, and that tracing is one of the things an attorney can help sort out. The page on nursing home abuse cases covers how care-related claims against facilities are framed.

The Records That May Explain Your Loved One's Last Weeks

The resident's chart is usually the center of a wrongful death case. It shows what the staff saw, what they wrote down and what they did about it. If you are trying to understand your loved one's last weeks or months, the records that usually matter include:

• medical and nursing records, including physician orders, progress notes and nursing assessments;
• care plans, which set out what the facility planned to do about known risks such as falls, wounds or weight loss;
• medication administration records, which show what was given, when and by whom;
• incident and accident reports the facility filed after a fall, an injury or an altercation;
• staffing logs and shift records, which show who was on duty and how many staff were working;
• state inspection and survey records for the facility. Medicare's Care Compare tool is one place families look for a facility's inspection history;
• photographs and video, where they exist, including pictures family members took during visits.

Hospital records from the final admission often fill in what the nursing home chart does not. So do the death certificate and any autopsy report. Families often keep their own notes too: dates of visits, what they saw, and what staff told them.

Reading these records is rarely straightforward. Entries can be sparse, entries made at different times can conflict, and a gap in documentation does not by itself show that care was missing. Whether a record is complete, when it was written and whether it matches other sources are questions in their own right. Preservation of records is sometimes raised early in a case for that reason.

For a family, what is at stake here is whether the paper trail matches what you saw at the bedside. Once some of these documents are in hand, a discussion with an attorney can focus on which of them bear on the way the death happened and which may still be missing.

What Damages State Law May Allow

The categories of loss a state recognizes shape what the claim is about. In some families, talk of damages feels beside the point next to the loss itself, but those categories also reflect what the law treats as the harm done to the family and to the resident.

The categories state laws commonly recognize include:

• economic damages, such as medical expenses incurred before death, funeral and burial costs, and the financial support survivors lost;
• non-economic damages, such as loss of companionship and, in some states, grief. Whether these are recognized, and for whom, varies by state.

Many states also recognize a survival action, which is a separate claim for the deceased resident's own pain and suffering before death. It is brought on behalf of the estate rather than the survivors. Where a state allows it, a survival action can be brought alongside a wrongful death claim. The two may be governed by different statutes. For a family whose loved one suffered before death, this is the part of the law that speaks to that suffering.

If the conduct a family is concerned about was willful, wanton or reckless, some states allow punitive damages. These are not meant to make up for a loss; they are meant to punish serious misconduct. They are not available in every state, and where they are, the standard of proof is often higher.

Some states also cap non-economic damages, punitive damages or both, and others do not. Caps can depend on the type of defendant or the type of claim, such as whether the claim is treated as a medical one.

Nothing on this page predicts an outcome or describes what any claim is worth. Which categories may apply in your family's situation depends on the applicable state's statute and the facts, and that is a question a conversation with an attorney can help sort out.

Filing Deadlines: Why the Applicable State's Statute of Limitations Governs — and the Special Rule for VA Facilities

A statute of limitations is the period within which a claim must be filed or be forever barred. Every state sets a limitation period for wrongful death claims. When the period begins to run, and whether any exception pauses or extends it, is also set by state law. A survival action may carry its own period. Missing the deadline that applies can bar the claim entirely, which is why the deadline is the most time-sensitive part of any wrongful death matter.

A separate federal rule applies when the federal government runs the facility. The VA's own page describes a Community Living Center as a VA Nursing Home. It is a place where veterans receive nursing home level of care, "which includes help with activities of daily living and skilled nursing and medical care."

For a tort claim against the United States, 28 U.S.C. § 2401(b) provides that the claim "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." It is also barred unless suit is begun within six months after the agency mails notice of final denial by certified or registered mail.

28 U.S.C. § 2675(a) adds that a lawsuit for death caused by a government employee's negligent or wrongful act within the scope of employment may not be filed until the claim has been presented to the agency and finally denied in writing. If the agency does not make a final disposition within six months after the claim is filed, the claimant may treat that as a final denial at any time afterward. That subsection does not apply to claims asserted by third-party complaint, cross-claim or counterclaim under the Federal Rules of Civil Procedure.

State Veterans Homes are run by states, not the VA. That federal rule is not theirs. A death in a State Veterans Home, like a death in a privately run home, falls under the applicable state's law.

Because the governing rule depends on who ran the facility and which state's law applies, families who want to talk through the timing can request a case evaluation about where and when the death occurred.

Questions Worth Asking Before Speaking With an Attorney About a Nursing Home Death

Families often arrive at a first conversation with a folder of papers and a lot of questions. A few questions tend to shape that conversation more than others, because the answers point toward which records, parties and rules may matter.

The first is which records you already have. Many families hold the death certificate, a hospital discharge summary and letters or emails from the facility. The death certificate may name a cause of death. Whether that cause matches what the family saw is often where the questions start.

The second is whether the facility filed an incident or accident report. If there was a fall, an injury or an altercation with another resident, the family may have been told about it, called about it, or not informed at all. What staff said, and when, is part of the picture.

The third is whether a state survey or inspection took place near the time of death. Inspection history is public. Medicare's Care Compare tool is one place families look it up, and a survey close to the date of death can be part of the timeline.

The fourth concerns documents. Some families have received, or been asked to sign, papers from the facility or its insurer after the death, or at admission. These can include releases and arbitration agreements. Whether anything was signed, and what it says, is useful to know when the conversation begins.

If you have answers to even some of these questions, a first conversation can move more quickly from what happened to what it may mean. A case evaluation is a conversation about what happened. It is not a promise of representation, a prediction of how anything will turn out, or a statement of what a case is worth. This page does not set out any state's deadlines, standing rules or damages caps, and it gives no medical opinion about why a particular resident died.